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 the Agents agree that the Company may issue and sell through B. Xxxxx, as representative of the several Agents, as sales agents for the Company, the Shares (an ‘Agency Transaction’) as follows: (i) The Company may, from time to time, propose to the Agents the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail substantially in the form of Exhibit A hereto (an ‘Agency Transaction Notice’)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 hereto (each, an ‘Authorized Company Representative’), such proposal to include: the trading day(s) for the Nasdaq Capital Market (the ‘Nasdaq’) (which may not be a day on which the Nasdaq 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 email reply to an Authorized Company Representative. (iii) Subject to the terms and conditions hereof, the Agents shall use commercially reasonable efforts to sell all of the Shares designated in, and subject to the terms of, such Agency Transaction Notice. Such 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 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 they do 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 the Agents may, upon notice to the other party 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 Agents 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) The Agents, as sales agents 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 distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, and (y) such other sales of the Shares on behalf of the Company in their capacity as agents of the Company as shall be agreed by the Company and the Agents in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares. (vii) The compensation to the Agents for sales of the Shares in an Agency Transaction with respect to which such Agents act as sales agents hereunder shall be 3.5% of the gross offering proceeds of the Shares sold in such Agency Transaction. The Agents 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 Nasdaq on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (w) the number of Shares sold on such Trading Day, (x) the gross offering proceeds received from such sales, (y) the commission payable by the Company to the Agents with respect to such sales and (z) 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 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 the Agents in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents against payment by the Agents 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 the Agents’ or their designee’s account (provided that such Agents 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 Agents 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 Agents any commission, discount or other compensation to which they would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Vicinity Motor Corp)
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 the Agents each Agent agree that the Company may issue and sell through B. Xxxxxeach Agent, as representative of the several Agents, acting as sales agents agent for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents such Agent the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’)”) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market The New York Stock Exchange (the ‘Nasdaq’“NYSE”) (which may not be a day on which the Nasdaq 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 email reply 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, the Agents 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. Such 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 the that 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 they do 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 the Agents 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 Agents 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) The AgentsEach Agent, as sales agents 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, 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 their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents such Agent in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The amount of any discount, commission or other compensation to be paid by the Company to the Agents for sales in connection with the sale of the Shares in an Agency Transaction with respect to which such Agents act as sales agents hereunder shall be 3.5% of calculated in accordance with the gross offering proceeds of terms set forth in Schedule 5 hereto and the Shares sold in such applicable Agency TransactionTransaction Notice. The Agents 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 Nasdaq NYSE on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company to the Agents with respect to such sales and (ziv) 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 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 the Agents such Agent in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents such Agent against payment by the Agents 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 the Agents’ such Agent’s or their its designee’s account (provided that such Agents 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 Agents 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 Agents such Agent any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however.
(ix) The Company agrees that any offer to sell Shares, that without limiting Section 5 hereinany solicitation of an offer to buy Shares, with respect to (ii) aboveor 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 not be obligated to pay the in no event request that multiple Agents any commission, discount or other compensation on any sell Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreementsame day.
Appears in 1 contract
Samples: Equity Distribution Agreement (Investors Real Estate Trust)
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 the Agents Citigroup agree that the Company may issue and sell through B. XxxxxCitigroup, as representative exclusive sales agent for the Company for the purpose of soliciting purchases of the several Agents, as sales agents for Shares from the CompanyCompany pursuant to this Agreement, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents Citigroup the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’“Exchange”) (which may not be a day on which the Nasdaq 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 email reply 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, the Agents 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. Such 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 the Agents that 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 they do 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 the Agents 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 Agents 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) The AgentsCitigroup, as sales agents 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, 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 their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents Citigroup in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents Citigroup for sales of the Shares in an Agency Transaction with respect to which such Agents act Citigroup acts as sales agents agent hereunder shall be 3.5% equal to (A) Two Percent (2%) 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 in such Agency Transactionunder this Agreement. The Agents 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 Nasdaq Exchange on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company to the Agents Citigroup with respect to such sales and (ziv) 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 second 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 the Agents Citigroup in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents Citigroup against payment by the Agents 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 the Agents’ Citigroup’s or their its designee’s account (provided that such Agents 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 Agents 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 Agents Citigroup any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
Appears in 1 contract
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 the Agents Managers agree that the Company Partnership may issue and sell through B. Xxxxx, as representative of the several Agentseach Manager, as sales agents agent for the CompanyPartnership, the Shares Units (an ‘“Agency Transaction’”) as follows:
(i) The Company Partnership may, from time to time, propose to the Agents a Manager the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule 2 hereto (each, an ‘“Authorized Company Partnership Representative’”), such proposal to include: (A) the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’“Exchange”) (which may not be a day on which the Nasdaq 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 email reply an acknowledgement included in a return electronic mail message referring to the Agency Transaction Notice for such Agency Transaction that is delivered to an Authorized Company Partnership Representative.
(iii) Subject to the terms and conditions hereof, the Agents each 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. Such 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 the Agents that 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 they do 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 the Agents 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 Agents applicable 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) The AgentsA Manager, as sales agents 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, 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 their its capacity as agents agent of the Company Partnership as shall be agreed by the Company Partnership and the Agents Manager in writing. The Agents covenant that the Agents will not writing (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shareswhich may be by email).
(vii) The compensation to the Agents a Manager for sales of the Shares Units in an Agency Transaction with respect to which such Agents act Manager acts as sales agents agent hereunder shall be 3.5up to 2% of the gross offering proceeds of the Shares Units sold in such Agency Transactionpursuant to this Agreement. The Agents 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 Nasdaq Exchange on each Trading Day on which Shares Units are sold in an Agency Transaction under this Agreement, setting forth (wA) the number of Shares Units sold on such Trading Day, Day and (xB) 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 (yB) 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 Agents with respect Manager against payment by the Manager to such sales and (z) 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 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 the Agents in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents against payment by the Agents 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 the Agents’ Manager’s or their its designee’s account (provided that such Agents the 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 Agents 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 Agents Manager any commission, discount discount, or other compensation to which they it would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect . If the Manager breaches this Agreement by failing to (ii) abovedeliver the Net Offering Proceeds to the Partnership on any Agency Settlement Date for the Units delivered by the Partnership, the Company shall not be obligated to Manager will pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally Partnership interest based on the TSX Venture Exchange (‘TSXV’) or effective overnight federal funds rate on such unpaid amount less any compensation due to the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this AgreementManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (EnLink Midstream Partners, LP)
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 the Agents each Agent agree that the Company may issue and sell through B. Xxxxxeach Agent, as representative of the several Agents, acting as sales agents agent for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents such Agent the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’)”) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’“NYSE”) (which may not be a day on which the Nasdaq 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 email reply 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, the Agents 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. Such The Company acknowledges that the Agents will conduct the sale of the Shares in compliance with applicable law, rules and regulations, including, without limitation, Regulation M under the Exchange Act, and applicable NYSE rules and that such compliance may include a delay in commencement of sales efforts after receipt of an Agency Transaction Notice. The Agents agree to promptly disclose any such delay and the potential length of such delay to the Company. 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 the that 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 they do 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 the Agents 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 Agents 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) The AgentsEach Agent, as sales agents 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, 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 their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents such Agent in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The amount of any discount, commission or other compensation to be paid by the Company to the Agents for sales in connection with the sale of the Shares in an Agency Transaction with respect to which such Agents act as sales agents hereunder shall be 3.5% of calculated in accordance with the gross offering proceeds of terms set forth in Schedule 4 hereto and the Shares sold in such applicable Agency TransactionTransaction Notice. The Agents 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 Nasdaq NYSE on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company to the Agents with respect to such sales and (ziv) 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 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 the Agents such Agent in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents such Agent against payment by the Agents 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 the Agents’ such Agent’s or their its designee’s account (provided that such Agents 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 of Common Stock 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 Agents 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 Agents such Agent any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however.
(ix) The Company agrees that any offer to sell Shares, that without limiting Section 5 hereinany solicitation of an offer to buy Shares, with respect to (ii) aboveor any sales of Shares shall only be effected by or through only one Agent on any single given day, but in no event by more than one, and the Company shall not be obligated to pay the in no event request that multiple Agents any commission, discount or other compensation on any sell Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreementsame day.
Appears in 1 contract
Samples: Equity Distribution Agreement (New York City REIT, Inc.)
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 Partnership and the Agents BMOCM agree that the Company Partnership may issue and sell through B. Xxxxx, as representative of the several AgentsBMOCM, as sales agents agent for the CompanyPartnership, the Shares Units (an ‘“Agency Transaction’”) as follows:
(i) The Company Partnership may, from time to time, propose to the Agents BMOCM the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule 2 hereto (each, an ‘“Authorized Company Partnership Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’“Exchange”) (which may not be a day on which the Nasdaq 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’”); the maximum number of Shares Units that the Company Partnership wishes to sell in the aggregate and on each Trading Day; and the minimum price at which the Company Partnership is willing to sell the Shares Units (the ‘“Floor Price’”); and the compensation payable to BMOCM for such sales pursuant to Section 1(a)(vii).
(ii) If such proposed terms for an Agency Transaction are acceptable to the AgentsBMOCM, it shall promptly confirm the terms by email reply an acknowledgement included in a return electronic mail message referring to the Agency Transaction Notice for such Agency Transaction that is delivered to an Authorized Company Partnership Representative.
(iii) Subject to the terms and conditions hereof, the Agents BMOCM 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. Such Agents BMOCM shall not sell any Share Unit at a price lower than the Floor Price. The Company Partnership acknowledges and agrees with the Agents BMOCM that (x) there can be no assurance the Agents that BMOCM will be successful in selling all or any of such SharesUnits, (y) the Agents BMOCM shall incur no liability or obligation to the Company Partnership or any other person or entity if they do it does not sell any Shares Units for any reason other than a failure by BMOCM 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 (z) the Agents BMOCM shall be under no 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 BMOCM under this Section 1(a).
(iv) The CompanyPartnership, acting through an Authorized Company Partnership Representative, or the Agents BMOCM may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend or terminate an offering of the SharesUnits; 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 Agents 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) The AgentsBMOCM, as sales agents 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 (x) 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, offering” under Rule 415(a)(4) of the Rules and Regulations and (y) such other sales of the Shares Units on behalf of the Company Partnership in their its capacity as agents agent of the Company Partnership as shall be agreed by the Company Partnership and the Agents BMOCM in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents BMOCM for sales of the Shares Units in an Agency Transaction with respect to which such Agents act BMOCM acts as sales agents agent hereunder shall be 3.5up to 2% of the gross offering proceeds of the Shares Units sold in such Agency Transactionpursuant to this Agreement. The Agents BMOCM 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 Nasdaq Exchange on each Trading Day on which Shares Units are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares Units sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company Partnership to the Agents BMOCM with respect to such sales and (ziv) 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 Units in an Agency Transaction pursuant to this Agreement shall occur on the second 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 Units sold through the Agents BMOCM in Agency Transactions for settlement on such date shall be issued and delivered by the Company Partnership to the Agents BMOCM against payment by the Agents BMOCM to the Company Partnership 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 the Agents’ BMOCM’s or their its designee’s account (provided that such Agents BMOCM 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 (i) hold the Agents 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 Partnership and (ii) pay the Agents BMOCM any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however. If BMOCM 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, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to BMOCM will pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally Partnership interest based on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents effective overnight federal funds rate on such unpaid amount less any compensation due to comply with their obligations under the terms of this AgreementBMOCM.
Appears in 1 contract
Samples: Equity Distribution Agreement (EnLink Midstream Partners, LP)
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 the Agents agree that the Company may issue and sell through B. Xxxxx, as representative of the several Agents, as sales agents for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents an Agent the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’“NYSE”) (which may not be a day on which the Nasdaq 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 Agentsapplicable Agent, it shall promptly confirm the terms by email reply 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, the Agents applicable 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. Such Agents Agent 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 the Agents applicable Agent will be successful in selling all or any of such Shares, (y) the Agents applicable Agent shall incur no liability or obligation to the Company or any other person or entity if they do 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 the Agents applicable Agent may, upon notice to the other party 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 Agents 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) The Agentsapplicable Agent, as sales agents 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 distribution’ ” in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, and (y) such other sales of the Shares on behalf of the Company in their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents applicable Agent in writing. The Agents Agents, severally and not jointly, covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘“at-the-market distribution’ ” (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents a particular Agent for sales of the Shares in an Agency Transaction with respect to which such Agents act Agent acts as sales agents agent hereunder shall be 3.5as set forth in the Agency Transaction Notice for such Agency Transaction but shall not exceed 2.0% of the gross offering proceeds of the Shares sold in such Agency Transaction. The Agents applicable 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 Nasdaq NYSE on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (w) the number of Shares sold on such Trading Day, (x) the gross offering proceeds received from such sales, (y) the commission payable by the Company to the Agents with respect to such sales and (z) 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 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 the Agents applicable Agent in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents applicable Agent against payment by the Agents applicable 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 the Agents’ applicable Agent’s or their its designee’s account (provided that such Agents 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 Agents 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 Agents any commission, discount or other compensation to which they would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (First Majestic Silver Corp)
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 the Agents BMOCM agree that the Company may issue and sell through B. Xxxxx, as representative of the several AgentsBMOCM, as sales agents agent for the Company, the Class A Common Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents BMOCM the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’“Exchange”) (which may not be a day on which the Nasdaq Exchange is scheduled to close prior to its regular weekday closing time) on which the Class A Common Shares are to be sold (each, a ‘“Trading Day’”); the maximum number of Class A Common 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 Class A Common 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 email reply 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, the Agents BMOCM shall use its commercially reasonable efforts to sell all of the Class A Common Shares designated in, and subject to the terms of, such Agency Transaction Notice. Such Agents BMOCM shall not sell any Share at a price lower than the applicable Floor Price. The Company acknowledges and agrees with the Agents BMOCM that (x) there can be no assurance the Agents that BMOCM will be successful in selling all or any of such Class A Common Shares, (y) the Agents BMOCM shall incur no liability or obligation to the Company or any other person or entity if they do it does not sell any Class A Common Shares for any reason and (z) the Agents BMOCM shall be under no obligation to purchase any Class A Common 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 the Agents BMOCM may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend an offering of the Class A Common Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Class A Common 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 Class A Common Shares shall be sold on more than one Trading Day, then the Company and the Agents 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) The AgentsBMOCM, as sales agents agent in an Agency Transaction, shall not make any sales of the Class A Common 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, offering” under Rule 415(a)(4) of the Rules and Regulations and (y) such other sales of the Class A Common Shares on behalf of the Company in their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents BMOCM in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents BMOCM for sales of the Class A Common Shares in an Agency Transaction with respect to which such Agents act BMOCM acts as sales agents agent hereunder shall be 3.5% of the gross offering proceeds of the Shares sold in such Agency Transactionas set forth on Schedule 4 hereto. The Agents 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 Nasdaq Exchange on each Trading Day on which Class A Common Shares are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Class A Common Shares sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company to the Agents BMOCM with respect to such sales and (ziv) 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 Class A Common Shares in an Agency Transaction pursuant to this Agreement shall occur on the 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 Class A Common Shares sold through the Agents BMOCM in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents BMOCM against payment by the Agents BMOCM to the Company of the Net Offering Proceeds from the sale of such Class A Common Shares. Settlement for all such Class A Common Shares shall be effected by free delivery of the Class A Common Shares by the Company or its transfer agent to the Agents’ BMOCM’s or their its designee’s account (provided that such Agents 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 Class A Common Shares on any Agency Settlement Date, the Company shall (i) hold the Agents BMOCM harmless against any loss, claim, damage, 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 Agents BMOCM any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Designer Brands Inc.)
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 Partnership and the Agents BMOCM agree that the Company Partnership may issue and sell through B. Xxxxx, as representative of the several AgentsBMOCM, as sales agents agent for the CompanyPartnership, the Shares Units (an ‘“Agency Transaction’”) as follows:
(i) The Company Partnership may, from time to time, propose to the Agents BMOCM the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule 2 1 hereto (each, an ‘“Authorized Company Partnership Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital NASDAQ Global Select Market (the ‘Nasdaq’“Exchange”) (which may not be a day on which the Nasdaq 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’”); the maximum number of Shares Units that the Company Partnership wishes to sell in the aggregate and on each Trading Day; and the minimum price at which the Company Partnership is willing to sell the Shares Units (the ‘“Floor Price’”); and the compensation payable to BMOCM for such sales pursuant to Section 1(a)(vii).
(ii) If such proposed terms for an Agency Transaction are acceptable to the AgentsBMOCM, it shall promptly confirm the terms by email reply countersigning the Agency Transaction Notice for such Agency Transaction and emailing it to an Authorized Company Partnership Representative.
(iii) Subject to the terms and conditions hereof, the Agents BMOCM 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. Such Agents BMOCM shall not sell any Share Unit at a price lower than the Floor Price. The Company Partnership acknowledges and agrees with the Agents BMOCM that (x) there can be no assurance the Agents that BMOCM will be successful in selling all or any of such SharesUnits, (y) the Agents BMOCM shall incur no liability or obligation to the Company Partnership or any other person or entity if they do it does not sell any Shares Units for any reason other than a failure by BMOCM 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 (z) the Agents BMOCM shall be under no 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 BMOCM under this Section 1(a).
(iv) The CompanyPartnership, acting through an Authorized Company Partnership Representative, or the Agents BMOCM may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend or terminate an offering of the SharesUnits; 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 Agents 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) The AgentsBMOCM, as sales agents 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 (x) 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, offering” under Rule 415(a)(4) of the Rules and Regulations and (y) such other sales of the Shares Units on behalf of the Company Partnership in their its capacity as agents agent of the Company Partnership as shall be agreed by the Company Partnership and the Agents BMOCM in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents BMOCM for sales of the Shares Units in an Agency Transaction with respect to which such Agents act BMOCM acts as sales agents agent hereunder shall be 3.5up to 2% of the gross offering proceeds of the Shares Units sold in such Agency Transactionpursuant to this Agreement. The Agents BMOCM 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 Nasdaq Exchange on each Trading Day on which Shares Units are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares Units sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company Partnership to the Agents BMOCM with respect to such sales and (ziv) 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 Units in an Agency Transaction pursuant to this Agreement shall occur on the second 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 Units sold through the Agents BMOCM in Agency Transactions for settlement on such date shall be issued and delivered by the Company Partnership to the Agents BMOCM against payment by the Agents BMOCM to the Company Partnership 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 the Agents’ BMOCM’s or their its designee’s account (provided that such Agents BMOCM 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 (i) hold the Agents 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 Partnership and (ii) pay the Agents BMOCM any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however. If BMOCM 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, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to BMOCM will pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally Partnership interest based on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents effective overnight federal funds rate on such unpaid amount less any compensation due to comply with their obligations under the terms of this AgreementBMOCM.
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 B. Xxxxx, as representative of the several Agentsan Agent, as sales agents agent for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to an Agent determined in the Agents sole discretion of the Company (the “Designated Agent”) the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’“Exchange”) (which may not be a day on which the Nasdaq 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 AgentsDesignated Agent, it shall promptly confirm the terms by email reply countersigning the Agency Transaction Notice for such Agency Transaction and emailing it to an Authorized Company Representative. The Agency Transaction Notice shall be effective unless and until (A) the Designated Agent, in accordance with the notice requirements set forth in Section 1(a)(iv) below, suspends or terminates the Agency Transaction Notice for any reason, in its sole discretion, (B) the entire amount of the Placement Shares have been sold, (C) in accordance with the notice requirements set forth in Section 1(a)(iv) below, the Company suspends or terminates the Agency Transaction Notice for any reason, in its sole discretion, (D) the Company issues a subsequent Agency Transaction Notice with parameters superseding those on the earlier dated Agency Transaction Notice, or (E) this Agreement has been terminated under the provisions of Section 6.
(iii) Subject to the terms and conditions hereof, the Agents Designated 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. Such Agents No Designated Agent shall not sell any Share at a price lower than the Floor Price. The Company acknowledges and agrees with the Agents each Designated Agent that (xA) there can be no assurance that the Agents Designated Agent will be successful in selling all or any of such Shares, (yB) the Agents Designated Agent shall incur no liability or obligation to the Company or any other person or entity if they do it does not sell any Shares for any reason other than a failure by the Designated Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement and (zC) the Agents Designated 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 the Agents applicable Designated Agent under the Agency Transaction Notice 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 Agents Designated 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) The AgentsDesignated Agent, as sales agents agent in an Agency Transaction, shall not make any sales sale of the Shares on behalf of the Company, pursuant to this Agreement, other than (xA) 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 distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, and (yB) such other sales of the Shares on behalf of the Company in their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents Agent in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents Designated Agent for sales of the Shares in an Agency Transaction with respect to which such Agents act Designated Agent acts as sales agents agent hereunder shall be 3.5in the form of commissions equal to 1.5% of the gross offering sales proceeds of the Shares sold in such Agency Transactionpursuant to this Section 1(a) of this Agreement. The Agents Designated 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 Nasdaq Exchange on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (wA) the number of Shares sold on such Trading Day, (xB) the gross offering sales proceeds received from such sales, (y) the commission payable by the Company to the Agents with respect to such sales and (zC) the net offering proceeds (being the gross offering sales 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 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 the Agents Designated Agent in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents such Designated Agent against payment by the Agents such Designated 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 the Agents’ Designated Agent’s or their its designee’s account (provided that such Agents the Designated 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 (iA) hold the Agents Designated 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 (iiB) pay the Agents Designated Agent any commission, discount commission or other compensation to which they it would otherwise be entitled absent such default; provided however. If the Designated Agent shall default on its obligation to deliver the Net Offering proceeds on any Agency Settlement Date, then the Designated Agent shall pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to such Designated Agent.
(ix) The Company agrees that without limiting Section 5 hereinany offer to sell Shares, with respect any solicitation of an offer to (ii) abovebuy Shares, or any sales of Shares shall only be effected by or through one Agent on any single given day, but in no event by more than one, and the Company shall not be obligated to pay the in no event request that multiple Agents any commission, discount or other compensation on any sell Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreementsame day.
Appears in 1 contract
Samples: Equity Distribution Agreement (Hecla Mining Co/De/)
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 the Agents agree Each time that the Company may wishes to issue and sell Securities through B. Xxxxx, as representative of the several AgentsLadenburg, as sales agents for agent, hereunder (each, an “Agency Transaction”), it will notify Ladenburg by email notice (or other method mutually agreed to in writing by the Companyparties) containing the parameters in accordance with which it desires the Securities to be sold, which shall at a minimum include the maximum number of Securities to be issued, the Shares time period during which such sales are requested to be made and any minimum price of such Common Securities or Preferred Securities, as the case may be, below which sales may not be made (an ‘Agency Transaction’) as follows:
(i) The Company maya “Placement Notice”), from time to time, propose to the Agents the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail substantially in the form of which containing such minimum sales parameters necessary is attached hereto as Exhibit A hereto (an ‘Agency Transaction Notice’)) A. The Placement Notice shall originate from any of the individuals listed as authorized representatives from the Company set forth on Exhibit B, and shall be addressed to each of the Company individuals from Ladenburg set forth on Schedule 2 hereto (eachExhibit B, an ‘Authorized Company Representative’), as such proposal Exhibit B may be amended from time to include: the trading day(s) for the Nasdaq Capital Market (the ‘Nasdaq’) (which may not be a day on which the Nasdaq 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 . If Ladenburg 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 accept such proposed terms for an Agency Transaction are acceptable included in the Placement Notice (which it may decline to the Agents, it shall promptly confirm the terms by email reply to an Authorized Company Representative.
(iii) Subject to the terms and conditions hereof, the Agents shall use commercially reasonable efforts to sell all of the Shares designated in, and subject to the terms of, such Agency Transaction Notice. Such 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 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 they do not sell any Shares for any reason and (zin its sole discretion) or, following discussion with the Agents shall be under no obligation Company, wishes to purchase any Shares accept amended terms, Ladenburg will, prior to 8:30 a.m., Eastern Time, on a principal basis pursuant to this Agreement (except in the case of a Principal Transaction Business Day (as defined below) pursuant following the Business Day on which such Placement Notice is delivered to this Agreement Ladenburg, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and Ladenburg set forth on Exhibit B setting forth such acceptance or, in the relevant Terms Agreement alternative, such other terms that Ladenburg is willing to accept. Where the terms provided in the Placement Notice are amended as provided for in the immediately preceding sentence, such terms will not be binding on the Company or Ladenburg until the Company delivers to Ladenburg an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as amended (the “Acceptance”), which email shall be addressed to all of the individuals from the Company and Ladenburg set forth on Exhibit B. The Placement Notice (as defined below)).
amended by the corresponding Acceptance, if applicable) shall be effective upon receipt by the Company of Ladenburg’s acceptance of the terms of the Placement Notice or upon receipt by Ladenburg of the Company’s Acceptance, as the case may be, unless and until (i) the entire amount of the Securities which the Company requested Ladenburg to sell in such Placement Notice have been sold, (ii) the Company terminates the Placement Notice in writing (including via email) at any time and in its sole discretion, (iii) the Company issues a subsequent Placement Notice with parameters expressly superseding those on the earlier dated Placement Notice, (iv) The Company, acting through an Authorized Company Representative, this Agreement has been terminated under the provisions of Section 12 or the Agents may, upon notice to the other party 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 either party shall have suspended the terms sale of the Securities in accordance with Section 4 below. The amount of any Agency Transaction as set forth discount, commission or other compensation to be paid by the Company to Ladenburg in connection with the sale of Securities in an Agency Transaction Notice contemplate that the Shares shall be sold on more than one Trading Day, then calculated in accordance with the terms set forth in Exhibit C. It is expressly acknowledged and agreed that neither the Company nor Ladenburg will have any obligation whatsoever with respect to an Agency Transaction or any Securities unless and until the Agents shall mutually agree Company delivers a Placement Notice to such additional Ladenburg and either (i) Ladenburg accepts the terms and conditions as they deem necessary in respect of such multiple Trading DaysPlacement Notice or (ii) where the terms of such Placement Notice are amended, and the Company accepts such additional amended terms and conditions shall be binding to the same extent as any other terms contained in the relevant Agency Transaction Notice.
(vi) The Agents, as sales agents 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 an Acceptance pursuant to the Prospectus in accordance with Rule 153 of the Rules and Regulations and meet the definition of an ‘at-the-market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canadaterms set forth above, and then only upon the terms specified in the Placement Notice (y) such other sales of the Shares on behalf of the Company in their capacity as agents of the Company as shall be agreed amended by the Company and the Agents in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents for sales of the Shares in an Agency Transaction with respect to which such Agents act as sales agents hereunder shall be 3.5% of the gross offering proceeds of the Shares sold in such Agency Transaction. The Agents 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 Nasdaq on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (w) the number of Shares sold on such Trading Day, (x) the gross offering proceeds received from such sales, (y) the commission payable by the Company to the Agents with respect to such sales and (z) 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 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 the Agents in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents against payment by the Agents 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 the Agents’ or their designee’s account (provided that such Agents 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 Agents 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 Agents any commission, discount or other compensation to which they would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.corresponding Acceptance,
Appears in 1 contract
Samples: Equity Distribution Agreement (Mind Technology, Inc)
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 the Agents Sales Agent agree that the Company may issue and sell through B. Xxxxx, as representative of the several AgentsSales Agent, as sales agents agent for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents 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 in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 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 Nasdaq Capital Market (the ‘“Nasdaq’”) (which may not be a day on which the 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 email reply 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, the Agents shall use commercially reasonable efforts to sell all of the Shares designated in, and subject to the terms of, such Agency Transaction Notice. Such 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 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 they do 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 the Agents may, upon notice to the other party 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 Agents 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) The Agents, as sales agents 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 distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, and (y) such other sales of the Shares on behalf of the Company in their capacity as agents of the Company as shall be agreed by the Company and the Agents in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents Sales Agent for sales each sale of the Placement Shares in an Agency Transaction with respect to which such Agents act the Sales Agent acts as sales agents agent hereunder shall be 3.5% of the gross offering proceeds of the Placement Shares sold in such Agency Transaction. The Agents foregoing rate of compensation shall provide written confirmation not apply when the Sales Agent 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 Nasdaq on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (w) the number of Shares sold on such Trading Day, (x) the gross offering proceeds received from such sales, (y) the commission payable by the Company to the Agents with respect to such sales and (z) 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 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 the Agents in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents against payment by the Agents 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 the Agents’ or their designee’s account (provided that such Agents 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 Agents 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 Agents any commission, discount or other compensation to which they would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.Sales Agent as
Appears in 1 contract
Samples: 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 the Agents Managers agree that the Company may issue and sell through B. Xxxxx, as representative of the several Agentsa Manager, as sales agents agent for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents a Manager the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’“Exchange”) (which may not be a day on which the Nasdaq 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 AgentsManager, it shall promptly confirm the terms by email reply 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, the Agents such Manager shall use its commercially reasonable efforts to sell all of the Shares designated in, and subject to the terms of, such Agency Transaction Notice. Such Agents The Manager shall not sell any Share at a price lower than the Floor Price. The Company acknowledges and agrees with the Agents such Manager that (x) there can be no assurance that the Agents Manager will be successful in selling all or any of such Shares, (y) the Agents Manager shall incur no liability or obligation to the Company or any other person or entity if they do it does not sell any Shares for any reason and (z) the Agents Manager 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)Agreement).
(iv) The Company, acting through an Authorized Company Representative, or the Agents a Manager 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 Agents 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) The AgentsA Manager, as sales agents 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 (as defined below) in accordance with Rule 153 of the Rules and Regulations (as defined below) and meet the definition of an ‘at-the-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, 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 their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents Managers in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents a Manager for sales of the Shares in an Agency Transaction with respect to which such Agents act a Manager acts as sales agents agent hereunder shall be 3.5up to 2.0% of the gross offering proceeds of the Shares sold in such Agency Transactionpursuant to this Agreement. The Agents Manager 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 Nasdaq Exchange on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company to the Agents Manager with respect to such sales and (ziv) 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 second 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 the Agents Manager in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents Manager against payment by the Agents Manager 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 the Agents’ Manager’s or their its designee’s account (provided that such Agents the Manager 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 Agents 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 and (ii) pay the Agents Manager any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Halcon Resources Corp)
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 the Agents Agent agree that the Company may issue and sell through B. Xxxxx, as representative of the several AgentsAgent, as sales agents agent for the Company, the Shares (an ‘"Agency Transaction’") as follows:
(i) The Company may, from time to time, propose to the Agents Agent the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail substantially in the form of Exhibit A hereto (an ‘"Agency Transaction Notice’")) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘"Authorized Company Representative’"), such proposal to include: the trading day(s) for the Nasdaq Capital Market NYSE American LLC (the ‘Nasdaq’"NYSE") (which may not be a day on which the Nasdaq 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’"). The Agent acknowledges that any such Agency Transaction Notice may relate to the placement of Shares to Coeur Mining, Inc., as contemplated in Section 1(d) below.
(ii) If such proposed terms for an Agency Transaction are acceptable to the AgentsAgent, it shall promptly confirm the terms by email reply to an Authorized Company Representative.
(iii) Subject to the terms and conditions hereof, the Agents 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. Such Agents Agent shall not sell any Share at a price lower than the Floor Price. The Company acknowledges and agrees with the Agents Agent that (x) there can be no assurance the Agents Agent will be successful in selling all or any of such Shares, (y) the Agents Agent shall incur no liability or obligation to the Company or any other person or entity if they do it does not sell any Shares for any reason and (z) the Agents 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 the Agents Agent may, upon notice to the other party 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 Agents 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) The AgentsAgent, as sales agents 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 distribution’ " in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, and (y) such other sales of the Shares on behalf of the Company in their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents Agent in writing. The Agents covenant Agent covenants that the Agents Agent will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘"at-the-market distribution’ " (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents Agent cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents Agent for sales of the Shares in an Agency Transaction with respect to which such Agents act Agent acts as sales agents agent hereunder shall be 3.52.75% of the gross offering proceeds of the Shares sold in such Agency Transaction. The Agents 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 Nasdaq NYSE on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (w) the number of Shares sold on such Trading Day, (x) the gross offering proceeds received from such sales, (y) the commission payable by the Company to the Agents Agent with respect to such sales and (z) 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 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 the Agents Agent in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents Agent against payment by the Agents 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 the Agents’ Agent's or their its designee’s 's account (provided that such Agents 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 Agents 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 Agents Agent any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents Agent any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) TSXV or the NasdaqNYSE; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents Agent to comply with their its obligations under the terms of this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Integra Resources Corp.)
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 Partnership and the Agents Managers agree that the Company Partnership may issue and sell through B. Xxxxx, as representative of the several Agentseach Manager, as sales agents agent for the CompanyPartnership, the Shares Units (an ‘“Agency Transaction’”) as follows:
(i) The Company Partnership may, from time to time, propose to the Agents a Manager the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule 2 hereto (each, an ‘“Authorized Company Partnership Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’“Exchange”) (which may not be a day on which the Nasdaq 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’”); the maximum number of Shares Units that the Company Partnership wishes to sell in the aggregate and on each Trading Day; and the minimum price at which the Company Partnership is willing to sell the Shares Units (the ‘“Floor Price’”); and the compensation payable to such Manager for such sales pursuant to Section 1(a)(vii).
(ii) If such proposed terms for an Agency Transaction are acceptable to the AgentsManager, it shall promptly confirm the terms by email reply an acknowledgement included in a return electronic mail message referring to the Agency Transaction Notice for such Agency Transaction that is delivered to an Authorized Company Partnership Representative.
(iii) Subject to the terms and conditions hereof, the Agents each 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. Such 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 (x) there can be no assurance the Agents that any Manager will be successful in selling all or any of such SharesUnits, (y) the Agents no Manager shall incur no any liability or obligation to the Company Partnership or any other person or entity if they do 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 (z) 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 the Agents 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 Agents applicable 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) The AgentsA Manager, as sales agents 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 (x) 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, offering” under Rule 415(a)(4) of the Rules and Regulations and (y) such other sales of the Shares Units on behalf of the Company Partnership in their its capacity as agents agent of the Company Partnership as shall be agreed by the Company Partnership and the Agents Manager in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents a Manager for sales of the Shares Units in an Agency Transaction with respect to which such Agents act Manager acts as sales agents agent hereunder shall be 3.5up to 2% of the gross offering proceeds of the Shares Units sold in such Agency Transactionpursuant to this Agreement. The Agents 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 Nasdaq Exchange on each Trading Day on which Shares Units are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares Units sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company Partnership to the Agents Manager with respect to such sales and (ziv) 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 Units in an Agency Transaction pursuant to this Agreement shall occur on the second 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 Units sold through the Agents a Manager in Agency Transactions for settlement on such date shall be issued and delivered by the Company Partnership to the Agents Manager against payment by the Agents Manager to the Company Partnership 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 the Agents’ Manager’s or their its designee’s account (provided that such Agents the 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 (i) hold the Agents 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 (ii) pay the Agents Manager any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect . If the Manager breaches this Agreement by failing to (ii) abovedeliver the Net Offering Proceeds to the Partnership on any Agency Settlement Date for the Units delivered by the Partnership, the Company shall not be obligated to Manager will pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally Partnership interest based on the TSX Venture Exchange (‘TSXV’) or effective overnight federal funds rate on such unpaid amount less any compensation due to the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this AgreementManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (EnLink Midstream Partners, LP)
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 the Agents Sales Agent agree that the Company may issue and sell through B. Xxxxx, as representative of the several AgentsSales Agent, as sales agents agent for the Company, the Shares (an ‘"Agency Transaction’") as follows:
(i) The Company may, from time to time, propose to the Agents 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 in the form of similar to Exhibit A hereto (an ‘"Agency Transaction Notice’")) from any of the individuals listed as authorized representatives of the Company on Schedule 2 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 Nasdaq Capital Market (the ‘"Nasdaq’") (which may not be a day on which the 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 email reply 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, the Agents shall use commercially reasonable efforts to sell all of the Shares designated in, and subject to the terms of, such Agency Transaction Notice. Such 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 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 they do 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 the Agents may, upon notice to the other party 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 Agents 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) The Agents, as sales agents 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 distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, and (y) such other sales of the Shares on behalf of the Company in their capacity as agents of the Company as shall be agreed by the Company and the Agents in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents Sales Agent for sales each sale of the Placement Shares in an Agency Transaction with respect to which such Agents act the Sales Agent acts as sales agents agent hereunder shall be 3.5% of the gross offering proceeds of the Placement Shares sold in such Agency Transaction. The Agents foregoing rate of compensation shall provide written confirmation not apply when the Sales Agent purchases Shares on a principal basis, in which case the Company may sell Shares to the Company (which may be provided by email Sales Agent as principal at a price to an Authorized Company Representative) following the close of trading on the Nasdaq on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (w) the number of Shares sold on such Trading Day, (x) the gross offering proceeds received from such sales, (y) the commission payable by the Company to the Agents with respect to such sales and (z) 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 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 the Agents in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents against payment by the Agents 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 the Agents’ or their designee’s account (provided that such Agents 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 Company and the Sales Agent at the relevant Point of Sale (as defined below) pursuant to the applicable Agency Transaction Notice (it being hereby acknowledged and agreed that the Sales Agent shall be freely tradable, transferable, registered shares in good deliverable form, in return for payment in same-day funds delivered under no obligation to purchase Shares on a principal basis pursuant to the account designated Sales Agreement, except as otherwise agreed by the CompanySales Agent and the Company in writing and expressly set forth in an Agency Transaction Notice). If the Company"Point of Sale" means, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any for an Agency Settlement DateTransaction, the Company shall (i) hold the Agents harmless against any losstime at which an acquiror of Shares entered into a contract, claimbinding upon such acquiror, damage, or expense (including, without limitation, reasonable legal fees and expenses), as incurred, arising out of or in connection with to acquire such default by the Company and (ii) pay the Agents any commission, discount or other compensation to which they would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this AgreementShares.
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 the Agents BMOCM agree that the Company may issue and sell through B. Xxxxx, as representative of the several AgentsBMOCM, as sales agents agent for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents BMOCM the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’“Exchange”) (which may not be a day on which the Nasdaq 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 email reply 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, the Agents 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. Such 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 the Agents that 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 they do 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 the Agents 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 Agents 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) The AgentsBMOCM, as sales agents 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, 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 their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents BMOCM in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents BMOCM for sales of the Shares in an Agency Transaction with respect to which such Agents act BMOCM acts as sales agents agent hereunder shall be 3.5% equal to Two Percent (2%) of the gross offering proceeds of the Shares sold in such Agency Transactionunder this Agreement. The Agents 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 Nasdaq Exchange on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company to the Agents BMOCM with respect to such sales and (ziv) 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 second 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 the Agents BMOCM in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents BMOCM against payment by the Agents 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 the Agents’ BMOCM’s or their its designee’s account (provided that such Agents 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 Agents 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 Agents BMOCM any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
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 the Agents each Agent agree that the Company may issue and sell through B. Xxxxxeach Agent, as representative of the several Agents, acting as sales agents agent for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents such Agent the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’)”) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the The Nasdaq Capital Global Select Market (the ‘“Nasdaq’”) (which may not be a day on which the Nasdaq 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 email reply 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, the Agents 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. Such The Company acknowledges that the Agents will conduct the sale of the Shares in compliance with applicable law, rules and regulations, including, without limitation, Regulation M under the Exchange Act, and applicable Nasdaq rules and that such compliance may include a delay in commencement of sales efforts after receipt of an Agency Transaction Notice. The Company and the Agents agree that any such delay and the potential length of such delay shall be promptly disclosed by, as applicable, either the Company to the Agents or the Agents to the Company. 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 the that 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 they do 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 the Agents 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 Agents 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) The AgentsEach Agent, as sales agents 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, 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 their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents such Agent in writing. The Agents covenant that Further, each agent hereby covenants and agrees not to make any sale of the Agents will shares not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection accordance with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain applicable instructions provided by the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the SharesCompany.
(vii) The amount of any discount, commission or other compensation to be paid by the Company to the Agents for sales in connection with the sale of the Shares in an Agency Transaction with respect to which such Agents act as sales agents hereunder shall be 3.5% of calculated in accordance with the gross offering proceeds of terms set forth in Schedule 5 hereto and the Shares sold in such applicable Agency TransactionTransaction Notice. The Agents 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 Nasdaq on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company to the Agents with respect to such sales and (ziv) 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 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 the Agents such Agent in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents such Agent against payment by the Agents 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 the Agents’ such Agent’s or their its designee’s account (provided that such Agents 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 of Preferred Stock 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 Agents 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 Agents such Agent any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however.
(ix) The Company agrees that any offer to sell Shares, that without limiting Section 5 hereinany solicitation of an offer to buy Shares, with respect to (ii) aboveor any sales of Shares shall only be effected by or through only one Agent on any single given day, but in no event by more than one, and the Company shall not be obligated to pay the in no event request that multiple Agents any commission, discount or other compensation on any sell Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreementsame day.
Appears in 1 contract
Samples: Equity Distribution Agreement (American Finance Trust, Inc)
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 Partnership and the Agents BMOCM agree that the Company Partnership may issue and sell through B. Xxxxx, as representative of the several AgentsBMOCM, as sales agents agent for the CompanyPartnership, the Shares Common Units (an ‘“Agency Transaction’”) as follows:
(i) The Company Partnership may, from time to time, propose to the Agents BMOCM the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule 2 1 hereto (each, an ‘“Authorized Company Partnership Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’“NYSE”) (which may not be a day on which the Nasdaq NYSE is scheduled to close prior to its regular weekday closing time) on which the Shares Common Units are to be sold (each, a ‘“Trading Day’”); the maximum number of Shares Common Units that the Company Partnership wishes to sell in the aggregate and on each Trading Day; and the minimum price at which the Company Partnership is willing to sell the Shares Common Units (the ‘“Floor Price’”).
(ii) If such proposed terms for an Agency Transaction are acceptable to the AgentsBMOCM, it shall promptly confirm the terms by email reply countersigning the Agency Transaction Notice for such Agency Transaction and emailing it to an Authorized Company Partnership Representative.
(iii) Subject to the terms and conditions hereof, the Agents BMOCM shall use its commercially reasonable efforts to sell all of the Shares Common Units designated in, and subject to the terms of, such Agency Transaction Notice. Such Agents BMOCM shall not sell any Share Common Unit at a price lower than the Floor Price. The Company Partnership acknowledges and agrees with the Agents BMOCM that (x) there can be no assurance the Agents that BMOCM will be successful in selling all or any of such SharesCommon Units, (y) the Agents BMOCM shall incur no liability or obligation to the Company Partnership or any other person or entity if they do it does not sell any Shares Common Units for any reason and (z) the Agents BMOCM shall be under no obligation to purchase any Shares Common 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 below)Agreement).
(iv) The CompanyPartnership, acting through an Authorized Company Partnership Representative, or the Agents BMOCM may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend an offering of the SharesCommon Units; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Common 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 Common Units shall be sold on more than one Trading Day, then the Company Partnership and the Agents 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) The AgentsBMOCM, as sales agents agent in an Agency Transaction, shall not make any sales of the Shares Common Units on behalf of the CompanyPartnership, pursuant to this Agreement, other than (x) 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 (as defined below) and meet the definition of an ‘at-the-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, offering” under Rule 415(a)(4) of the Rules and Regulations and (y) such other sales of the Shares Common Units on behalf of the Company Partnership in their its capacity as agents agent of the Company Partnership as shall be agreed by the Company Partnership and the Agents BMOCM in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents BMOCM for sales of the Shares Common Units in an Agency Transaction with respect to which such Agents act BMOCM acts as sales agents agent hereunder shall be 3.5up to 2% of the gross offering proceeds of the Shares Common Units sold in such Agency Transactionpursuant to this Agreement. The Agents BMOCM shall provide written confirmation to the Company Partnership (which may be provided by email to an Authorized Company Partnership Representative) following the close of trading on the Nasdaq NYSE on each Trading Day on which Shares Common Units are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares Common Units sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company Partnership to the Agents BMOCM with respect to such sales and (ziv) 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 Common Units in an Agency Transaction pursuant to this Agreement shall occur on the second 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 Common Units sold through the Agents BMOCM in Agency Transactions for settlement on such date shall be issued and delivered by the Company Partnership to the Agents BMOCM against payment by the Agents BMOCM to the Company Partnership of the Net Offering Proceeds from the sale of such SharesCommon Units. Settlement for all such Shares Common Units shall be effected by free delivery of the Shares Common Units by the Company Partnership or its transfer agent to the Agents’ BMOCM’s or their its designee’s account (provided that such Agents BMOCM 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 Units 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 Common Units on any Agency Settlement Date, the Company Partnership shall (i) hold the Agents BMOCM harmless against any loss, claim, damage, claim or expense (including, without limitation, reasonable legal fees and expenses), damage arising from or as incurred, arising out a result of or in connection with such default by the Company Partnership and (ii) pay the Agents BMOCM any commission, discount or other compensation commission to which they it would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (New Source Energy Partners L.P.)
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 the Agents agree that the Company may issue and sell through B. Xxxxx, as representative of the several Agents, as sales agents for the Company, the Shares (an ‘Agency Transaction’) as follows:
(i) The Company may, from time to timetime during the Term, propose to the Agents the terms of Agent 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 substantially in the form of Exhibit A hereto (an ‘Agency Transaction Notice’)) email from any of the individuals listed as an authorized representatives representative of the Company on Schedule 2 A hereto to make such sales and shall set forth the information specified below (each, an ‘Authorized “Issuance Transaction Proposal”). If the Agent agrees to the terms of such proposed Agency Transaction or if the Company Representative’)and the Agent mutually agree to modified terms for such proposed Agency Transaction, then the Agent shall no later than 9:30 a.m. (New York 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 (each, an “Issuance Transaction Acceptance”) confirming the terms of such proposal to include: proposed Agency Transaction as set forth in such Issuance Transaction Proposal or setting forth the trading day(smodified 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:
(1) for the Nasdaq Capital Market (the ‘Nasdaq’) (which may not be a day on which the Nasdaq is scheduled to close prior to its regular weekday closing timeExchange Business Day(s) on which the Issuance Shares subject to such Agency Transaction are intended to be sold (each, a ‘Trading Day’“Purchase 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 Issuance Shares on each such Purchase Date or a formula pursuant to which such lowest price shall be determined (each, an “Issuance Floor Price”); and
(4) if other than 1% of the Shares Gross Issuance Sales Price, the Agent’s discount or commission (the ‘Floor Price’“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 previously purchased and to be purchased pursuant to pending Issuance Transaction Acceptances (ii) If such proposed terms for an Agency Transaction are acceptable to the Agentsif any), it shall promptly confirm the terms by email reply to an Authorized Company Representative.
(iii) Subject to the terms and conditions hereof, the Agents shall use commercially reasonable efforts to sell all of the Shares designated inincluding 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. Such 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 aggregate Gross Issuance Sales Price of Issuance Shares sold and for otherwise monitoring the availability of Shares for sale under the Registration Statement and for ensuring that the 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 Agents that (x) there can be no assurance Agent to the Agents will be successful in selling all or 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 or any other person or entity if they do not sell any Shares for any reason and (z) of 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 latest Issuance Transaction (as defined below) pursuant to this Agreement and the relevant Terms Agreement (as defined below)).
(iv) Acceptance. The Company, acting through an Authorized Company Representative, or the Agents Agent may, upon notice to the other such party 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 Agents 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) The AgentsPurchase Date(s) in respect of the Issuance Shares deliverable pursuant to any Issuance Transaction Acceptance shall be set forth in or confirmed by, as sales agents in an Agency Transactionthe case may be, 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 distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, and (y) such other sales of the Shares on behalf of the Company in their capacity applicable Issuance Transaction Acceptance. Except as agents of the Company as shall be otherwise agreed by between the Company and the Agents in writing. The Agents covenant that Agent, the Agents will Agent’s commission for any Issuance Shares sold through the Agent pursuant to this Agreement shall be a percentage, not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with to exceed 1%, of the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market actual sales price of such Issuance Shares (the Shares“Gross Issuance Sales Price”), including selling an aggregate number which commission shall be as set forth in or principal amount of Shares confirmed by, as the case may be, the applicable Issuance Transaction Acceptance; provided, however, that would result 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 underwriter creating an over-allocation position applicable Terms Agreement. Notwithstanding the foregoing, in the securities. The event the Company acknowledges and agrees that engages the Agents cannot provide complete assurances that any Agent for a sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents for sales of the Issuance Shares in an Agency Transaction 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, the 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 Section 6 hereof, each dated the Settlement Date, and such other documents and information as the Agent shall reasonably request, and the Company and the Agent will agree to compensation that is customary for the Agent with respect to which such Agents act as sales agents hereunder transaction. The Gross Issuance Sales Price less the Agent’s commission and after deduction for 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 Issuance Sales Price.”
(iii) Payment of the Net Issuance Sales Price for Issuance Shares sold by the Company on any Purchase Date pursuant to a Transaction Acceptance shall be 3.5% made to the Company by wire transfer of immediately available funds to the gross offering proceeds account of the Shares sold in such Agency Transaction. The Agents 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 Nasdaq on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (w) the number of Shares sold on such Trading Day, (x) the gross offering proceeds received from such sales, (y) the commission payable by the Company shall provide to the Agents with respect to such sales and (z) 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 second Trading Agent at least one Exchange Business 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 the Agents in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents against payment by the Agents 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 the Agents’ or their designee’s account (provided that such Agents shall have given the Company written notice of such designee 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 Agents 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 Agents 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 they would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, by the Company shall not be obligated to pay and the Agents any commissionAgent) following each Purchase Date (each, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreementan “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 BreitBurn Parties and the Agents agree each Manager agrees that the Company Partnership may issue and sell through B. Xxxxx, as representative of the several AgentsManagers, as sales agents for the CompanyPartnership, the Shares Units (an ‘“Agency Transaction’”) as follows:
(i) The Company Partnership may, from time to time, propose to the Agents any Manager the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’)”) addressed to each of the individuals from such Manager listed on Schedule I hereto) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule 2 II hereto (each, an ‘“Authorized Company Partnership Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital NASDAQ Global Select Market (the ‘Nasdaq’“NASDAQ”) (which may not be a day on which the Nasdaq NASDAQ is scheduled to close prior to its regular weekday closing time) on which the Shares Units are to be sold (each, a ‘“Trading Day’”); the maximum number of Shares Units that the Company Partnership wishes to sell in the aggregate and on each Trading Day; and the minimum price at which the Company Partnership is willing to sell the Shares Units (the ‘“Floor Price’”); and the compensation payable to such Manager for such sales pursuant to Section 2(a)(vii). For the avoidance of doubt, the Partnership shall submit instructions to sell Units to only one Manager, if any, on any single Trading Day.
(ii) If such proposed terms for an Agency Transaction are acceptable to the Agentssuch Manager, it shall promptly confirm the terms by an acknowledgement included in a return email reply referencing the Agency Transaction Notice for such Agency Transaction and addressed to an Authorized Company Partnership Representative.
(iii) Subject to the terms and conditions hereof, the Agents such 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. Such Agents Manager shall not sell any Share Units at a price lower than the Floor Price. The Company Partnership acknowledges and agrees with the Agents Managers that (x) there can be no assurance the Agents that any Manager will be successful in selling all or any of such SharesUnits, (y) the Agents such Manager shall incur no liability or obligation to the Company Partnership or any other person or entity if they do it does not sell any Shares Units for any reason and (z) the Agents Managers shall be under no 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 below)).
(iv) The CompanyPartnership, acting through an Authorized Company Partnership Representative, or the Agents such Manager may, upon notice to the other party to the Agency Transaction by telephone (confirmed promptly by electronic mail), suspend or terminate an offering of the SharesUnits; 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 Agents such 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) The AgentsEach Manager, as sales agents 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 (xx)(i) 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributionsoffering” under Rule 415(a)(4) of the Rules and Regulations, provided that such transactions are made (ii) to or through a market maker, or (iii) directly on or through an exchange outside Canadaelectronic communication network, a “dark pool” or any similar market venue and (y) such other sales of the Shares Units on behalf of the Company Partnership in their its capacity as agents agent of the Company Partnership as shall be agreed by the Company Partnership and the Agents such Manager in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents such Manager for sales of the Shares Units in an Agency Transaction with respect to which such Agents act Manager acts as sales agents agent hereunder shall be 3.5as set forth in the Agency Transaction Notice for such Agency Transaction but shall not exceed 2.0% of the gross offering proceeds of the Shares Units sold in such Agency Transaction. The Agents Such Manager shall provide written confirmation to the Company Partnership (which may be provided by email to an Authorized Company Partnership Representative) following the close of trading on the Nasdaq NASDAQ on each Trading Day on which Shares Units are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares Units sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company Partnership to the Agents such Manager with respect to such sales and (ziv) 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 Units in an Agency Transaction pursuant to this Agreement shall occur on the second 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 Units sold through the Agents such Manager in Agency Transactions for settlement on such date shall be issued and delivered by the Company Partnership to the Agents such Manager against payment by the Agents such Manager to the Company Partnership 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 the Agents’ such Manager’s or their its designee’s account (provided that such Agents Manager shall have given the Company Partnership written notice of such designee prior to the relevant Agency Settlement Date) at The Depository Trust Company (“DTC”) 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 units 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 (i) hold the Agents such 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 (ii) pay the Agents such Manager any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (BreitBurn Energy Partners L.P.)
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 the Agents BMOCM agree that the Company may issue and sell through B. Xxxxx, as representative of the several AgentsBMOCM, as sales agents agent for the Company, the Shares (an ‘"Agency Transaction’") as follows:
(i) The Company may, from time to time, propose to the Agents BMOCM the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘"Agency Transaction Notice’")) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘"Authorized Company Representative’"), such proposal to include: the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’"NYSE") (which may not be a day on which the Nasdaq 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 AgentsBMOCM, it shall promptly confirm the terms by email reply 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, the Agents 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. Such 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 the Agents that 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 they do 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 the Agents 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 Agents 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) The AgentsBMOCM, as sales agents 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 distribution’ " in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, and (y) such other sales of the Shares on behalf of the Company in their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents BMOCM in writing. The Agents covenant that the Agents will BMOCM shall not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents BMOCM for sales of the Shares in an Agency Transaction with respect to which such Agents act BMOCM acts as sales agents agent hereunder shall be 3.5as set forth in the Agency Transaction Notice for such Agency Transaction but shall not exceed 2.0% of the gross offering proceeds of the Shares sold in such Agency Transaction. The Agents 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 Nasdaq NYSE on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company to the Agents BMOCM with respect to such sales and (ziv) 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 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 the Agents BMOCM in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents BMOCM against payment by the Agents 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 the Agents’ BMOCM's or their its designee’s 's account (provided that such Agents 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 Agents 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 Agents BMOCM any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (First Majestic Silver Corp)
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 the Agents agree that the Company may issue and sell through B. Xxxxx, as representative of the several AgentsBMOCM, as sales agents agent for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents BMOCM the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital NASDAQ Stock Market (the ‘Nasdaq’“NASDAQ”) (which may not be a day on which the Nasdaq NASDAQ 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 email reply 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, the Agents 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. Such 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 the Agents that 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 they do 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 the Agents 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 Agents 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) The AgentsBMOCM, as sales agents 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 distribution’ ” in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, and (y) such other sales of the Shares on behalf of the Company in their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents BMOCM in writing. The Agents covenant that the Agents will BMOCM shall not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents for sales of the Shares in an Agency Transaction with respect to which such Agents act BMOCM acts as sales agents agent hereunder shall be 3.5as set forth in the Agency Transaction Notice for such Agency Transaction but shall not exceed 2.0% of the gross offering proceeds of the Shares sold in such Agency Transaction. The CIBC, TD and Cormark shall each be entitled to 10% of the compensation the Agents receive pursuant to any Agency Transaction, with BMOCM entitled to retain 70% of such compensation. 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 Nasdaq NASDAQ on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (w) the number of Shares sold on such Trading Day, (x) the gross offering proceeds received from such sales, (y) the commission payable by the Company to the Agents with respect to such sales and (z) 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 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 the Agents BMOCM in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents BMOCM against payment by the Agents 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 the Agents’ BMOCM’s or their its designee’s account (provided that such Agents 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 (ix) hold the Agents 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 (iiy) pay the Agents any commission, discount or other compensation to which they would otherwise be entitled in accordance with paragraph (vii) above absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Ballard Power Systems Inc.)
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 B. Xxxxx, as representative of the several Agentsan Agent, as sales agents agent for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents an Agent the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’“Exchange”) (which may not be a day on which the Nasdaq 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 email reply 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, the Agents 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. Such 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 they do 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 the Agents 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 Agents 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) The AgentsEach Agent, as sales agents 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, 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 their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents Agent in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents an Agent for sales of the Shares in an Agency Transaction with respect to which such Agents act Agent acts as sales agents agent hereunder shall be 3.5% equal to One and One-half Percent (1.5%) of the gross offering proceeds of the Shares sold in such Agency Transactionunder this Agreement. The Agents 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 Nasdaq Exchange on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company to the Agents Agent with respect to such sales and (ziv) 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 second 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 the Agents an Agent in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents such Agent against payment by the Agents 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 the Agents’ such Agent’s or their its designee’s account (provided that such Agents 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 Agents 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 Agents Agent any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
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 the Agents each Agent agree that the Company may issue and sell through B. Xxxxx, as representative of the several Agentseach Agent, as sales agents agent for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents such Agent the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’“Exchange”) (which may not be a day on which the Nasdaq 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 Agentssuch Agent, it shall promptly confirm the terms by email reply 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, the Agents 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. Such The Agents shall not sell any Share at a price lower than the Floor Price. The Company acknowledges and agrees with the Agents that (xa) there can be no assurance the Agents that any Agent will be successful in selling all or any of such Shares, (yb) the Agents no Agent shall incur no any liability or obligation to the Company or any other person or entity if they do it does not sell any Shares for any reason and (zc) 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 the Agents 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 Agents 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) The AgentsEach Agent, as sales agents 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, 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 their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents such Agent in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The amount of any discount, commission or other compensation to be paid by the Company to the Agents for sales in connection with the sale of the Shares in an Agency Transaction with respect to which such Agents act as sales agents hereunder shall be 3.5% of calculated in accordance with the gross offering proceeds of terms set forth in Schedule 5 hereto and the Shares sold in such applicable Agency TransactionTransaction Notice. The Agents 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 Nasdaq NYSE on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company to the Agents with respect to such sales and (ziv) 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 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 the Agents such Agent in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents such Agent against payment by the Agents 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 the Agents’ such Agent’s or their its designee’s account (provided that such Agents 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 Agents 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 Agents such Agent any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Monmouth Real Estate Investment Corp)
Agency Transactions. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, each of the Company Transaction Parties and each of the Agents Managers agree that the Company may issue and sell through B. Xxxxx, as representative of the several Agentsany Manager, as sales agents agent for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents any such Manager the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market (the ‘Nasdaq’) (which may not be a day on which the Nasdaq is scheduled to close prior to its regular weekday closing timeTrading Day(s) 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 Manager wishes to accept the terms for an Agency Transaction are acceptable Transaction, which it may decline to do for any reason in its sole discretion, or, following discussions with the AgentsCompany, wishes to accept amended terms, it shall promptly confirm the terms by email reply 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, the Agents such Manager shall use its commercially reasonable efforts to sell all of the Shares designated in, and subject to the terms of, such Agency Transaction Notice. Such Agents The applicable Manager shall not sell any Share at a price lower than the Floor Price. The Company acknowledges Transaction Parties acknowledge and agrees agree with the Agents such Manager that (x) there can be no assurance the Agents that such Manager will be successful in selling all or any of such Shares, (y) the Agents such Manager shall incur no liability or obligation to the Company Transaction Parties or any other person or entity if they do it does not sell any Shares for any reason and (z) the Agents such Manager 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 the Agents may, upon notice to the other party 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 Agents applicable 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.
(viv) The Agentsapplicable Manager, as sales agents 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, 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 their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents such Manager in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(viivi) The compensation to the Agents applicable Manager for sales of the Shares in an Agency Transaction with respect to which such Agents act Manager acts as sales agents agent hereunder shall be 3.5shall be as set forth in the Agency Transaction Notice for such Agency Transaction but shall not exceed 2.0% of the gross offering proceeds of the Shares sold in such Agency Transaction. The Agents applicable Manager 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 Nasdaq Exchange on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company Transaction Parties to the Agents such Manager with respect to such sales and (ziv) the net offering proceeds (being the gross offering proceeds for such sales less the commission payable for such sales) (the ‘“Net Offering Proceeds’”).
(viiivii) Settlement for sales of the Shares in an Agency Transaction pursuant to this Agreement shall occur on the 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 the Agents a Manager in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents such Manager against payment by the Agents such Manager 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 the Agents’ applicable Manager’s or their its designee’s account (provided that such Agents Manager 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 Transaction Parties shall (i) hold the Agents applicable 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 and (ii) pay the Agents such Manager any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Broadstone Net Lease, Inc.)
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 the Agents agree that the Company may issue and sell through B. XxxxxCanaccord, as representative of the several Agents, as sales agents for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail substantially in the form of Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Global Market (the ‘“Nasdaq’”) (which may not be a day on which the Nasdaq 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 email reply to an Authorized Company Representative.
(iii) Subject to the terms and conditions hereof, the Agents shall use commercially reasonable efforts to sell all of the Shares designated in, and subject to the terms of, such Agency Transaction Notice. Such 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 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 they do 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 the Agents may, upon notice to the other party 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 Agents 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) The Agents, as sales agents 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 distribution’ ” in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, and (y) such other sales of the Shares on behalf of the Company in their capacity as agents of the Company as shall be agreed by the Company and the Agents in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘“at-the-market distribution’ ” (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents for sales of the Shares in an Agency Transaction with respect to which such Agents act as sales agents hereunder shall be 3.53.0% of the gross offering proceeds of the Shares sold in such Agency Transaction. The Agents 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 Nasdaq on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (w) the number of Shares sold on such Trading Day, (x) the gross offering proceeds received from such sales, (y) the commission payable by the Company to the Agents with respect to such sales and (z) 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 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 the Agents in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents against payment by the Agents 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 the Agents’ or their designee’s account (provided that such Agents 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 Agents 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 Agents any commission, discount or other compensation to which they would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) TSXV or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Engine Media Holdings, Inc.)
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 the Agents BMOCM agree that the Company may issue and sell through B. Xxxxx, as representative of the several AgentsBMOCM, as sales agents agent for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents BMOCM the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’“Exchange”) (which may not be a day on which the Nasdaq 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 email reply 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, the Agents 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. Such 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 the Agents that 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 they do it does not sell any Shares for any reason other than a failure by BMOCM to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement 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 the Agents 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 Agents 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) The AgentsBMOCM, as sales agents 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, 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 their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents BMOCM in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents BMOCM for sales of the Shares in an Agency Transaction with respect to which such Agents act BMOCM acts as sales agents agent hereunder shall be 3.5in the form of commissions equal to 2.0% of the gross offering sales proceeds of the Shares sold in such Agency Transactionpursuant to this Section 1(a) of this Agreement. The Agents 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 Nasdaq Exchange on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares sold on such Trading Day, (xii) the gross offering sales proceeds received from such sales, (y) the commission payable by the Company to the Agents with respect to such sales and (ziii) the net offering proceeds (being the gross offering sales 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 second 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 the Agents BMOCM in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents BMOCM against payment by the Agents 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 the Agents’ BMOCM’s or their its designee’s account (provided that such Agents 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 Agents 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 Agents BMOCM any commission, discount commission or other compensation to which they it would otherwise be entitled absent such default; provided however. If BMOCM shall default on its obligation to deliver the Net Offering proceeds on any Agency Settlement Date, that without limiting Section 5 herein, with respect to (ii) above, BMOCM shall hold the Company shall not be obligated to pay the Agents harmless against any commissionloss, discount claim, damage, or other compensation on any Shares that it is not possible to settle due to: expense (A) a suspension including, without limitation, reasonable legal fees and expenses), as incurred, arising out of or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure connection with such default by the Agents to comply with their obligations under the terms of this AgreementBMOCM.
Appears in 1 contract
Samples: Equity Distribution Agreement (Hecla Mining Co/De/)
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 the Agents BMOCM agree that the Company may issue and sell through B. Xxxxx, as representative of the several AgentsBMOCM, as sales agents agent for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents BMOCM the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Stock Market (the ‘Nasdaq’“Exchange”) (which may not be a day on which the Nasdaq 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 or dollar amount 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 email reply 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, the Agents 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. Such 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 the Agents that 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 they do 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 the Agents 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. While a suspension is in effect any obligation under Section 4(c), 4(d), 4(e) and 4(f) with respect to delivery of certificates, opinions, or comfort letters to BMOCM, shall be waived.
(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 Agents 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) The AgentsBMOCM, as sales agents 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, 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 their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents BMOCM in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents BMOCM for sales of the Shares in an Agency Transaction with respect to which such Agents act BMOCM acts as sales agents agent hereunder shall be 3.5% of the gross offering proceeds of the Shares sold in such Agency Transactionas set forth on Schedule 4 hereto. The Agents 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 Nasdaq Exchange on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company to the Agents BMOCM with respect to such sales and (ziv) 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 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 the Agents BMOCM in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents BMOCM against payment by the Agents 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 the Agents’ BMOCM’s or their its designee’s account (provided that such Agents 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 DateDate through no fault of BMOCM, the Company shall (i) hold the Agents BMOCM harmless against any loss, claim, damage, or expense (including, without limitation, reasonable and documented legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Agents BMOCM (without duplication) any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
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 the Agents Sales Agent agree that the Company may issue and sell through B. Xxxxx, as representative of the several AgentsSales Agent, as sales agents agent for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents 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 in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 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 time period and trading day(s) for the Nasdaq Capital Market (the ‘“Nasdaq’”) (which may not be a day on which the Nasdaq 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 AgentsSales Agent, it shall promptly confirm the terms by email reply 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 the 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 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, the Agents shall use commercially reasonable efforts to sell all of the Shares designated in, and subject to the terms of, such Agency Transaction Notice. Such 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 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 they do 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 the Agents may, upon notice to the other party 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 Agents 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) The Agents, as sales agents 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 distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, and (y) such other sales of the Shares on behalf of the Company in their capacity as agents of the Company as shall be agreed by the Company and the Agents in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents Sales Agent for sales each sale of the Shares in an Agency Transaction with respect to which such Agents act the Sales Agent acts as sales agents agent hereunder shall be 3.5% of the gross offering proceeds of the Shares sold in such Agency Transaction. The Agents foregoing rate of compensation shall provide written confirmation to not apply when the Company (which may be provided by email to an Authorized Company Representative) following the close of trading on the Nasdaq on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (w) the number of Shares sold on such Trading Day, (x) the gross offering proceeds received from such sales, (y) the commission payable by the Company to the Agents with respect to such sales and (z) 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 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 the Agents in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents against payment by the Agents 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 the Agents’ or their designee’s account (provided that such Agents 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 Sales Agent purchases Shares on any Agency Settlement Date, the Company shall (i) hold the Agents 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 Agents any commission, discount or other compensation to which they would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.a
Appears in 1 contract
Samples: 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 the Agents BMOCM agree that the Company may issue and sell through B. Xxxxx, as representative of the several AgentsBMOCM, as sales agents agent for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents BMOCM the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Global Select Market (the ‘Nasdaq’“Exchange”) (which may not be a day on which the Nasdaq 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 email reply 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, the Agents 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. Such 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 the Agents that 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 they do 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 the Agents 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 Agents 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) The AgentsBMOCM, as sales agents 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-“at the market distribution’ in National Instrument 44-102 - Shelf Distributions, provided that such transactions are made on an exchange outside Canada, 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 their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents BMOCM in writing. The Agents covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents BMOCM for sales of the Shares in an Agency Transaction with respect to which such Agents act BMOCM acts as sales agents agent hereunder shall be 3.5% of the gross offering proceeds of the Shares sold in such Agency Transactionas set forth on Schedule 5 hereto. The Agents 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 Nasdaq Exchange on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company to the Agents BMOCM with respect to such sales and (ziv) 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 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 the Agents BMOCM in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents BMOCM against payment by the Agents 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 the Agents’ BMOCM’s or their its designee’s account (provided that such Agents 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 Agents BMOCM harmless against any loss, claim, damage, or expense (including, without limitation, reasonable legal fees and expenses), as reasonably incurred, arising out of or in connection with such default by the Company and (ii) pay the Agents BMOCM any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (DXP Enterprises Inc)
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 the Agents BMOCM agree that the Company may issue and sell through B. Xxxxx, as representative of the several AgentsBMOCM, as sales agents agent for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents BMOCM the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’“NYSE”) (which may not be a day on which the Nasdaq 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 AgentsBMOCM, it shall promptly confirm the terms by email reply 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, the Agents 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. Such 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 the Agents that 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 they do 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 the Agents 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 Agents 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) The AgentsBMOCM, as sales agents 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 distribution’ ” in National Instrument 44-102 - – Shelf Distributions, provided that such transactions are made on an exchange outside Canada, and (y) such other sales of the Shares on behalf of the Company in their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents BMOCM in writing. The Agents covenant that the Agents will BMOCM shall not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘at-the-market distribution’ (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents BMOCM for sales of the Shares in an Agency Transaction with respect to which such Agents act BMOCM acts as sales agents agent hereunder shall be 3.5shall be as set forth in the Agency Transaction Notice for such Agency Transaction but shall not exceed 2.0% of the gross offering proceeds of the Shares sold in such Agency Transaction. The Agents 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 Nasdaq NYSE on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (wi) the number of Shares sold on such Trading Day, (xii) the gross offering proceeds received from such sales, (yiii) the commission payable by the Company to the Agents BMOCM with respect to such sales and (ziv) 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 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 the Agents BMOCM in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents BMOCM against payment by the Agents 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 the Agents’ BMOCM’s or their its designee’s account (provided that such Agents 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 Agents 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 Agents BMOCM any commission, discount or other compensation to which they it would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (First Majestic Silver Corp)
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 the Agents agree that the Company may issue and sell through B. Xxxxx, as representative of the several Agents, as sales agents for the Company, the Shares (an ‘“Agency Transaction’”) as follows:
(i) The Company may, from time to time, propose to the Agents an Agent the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially in the form of similar to Exhibit A hereto (an ‘“Agency Transaction Notice’”)) from any of the individuals listed as authorized representatives of the Company on Schedule 2 1 hereto (each, an ‘“Authorized Company Representative’”), such proposal to include: the trading day(s) for the Nasdaq Capital Market New York Stock Exchange (the ‘Nasdaq’“NYSE”) (which may not be a day on which the Nasdaq 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 Agentsapplicable Agent, it shall promptly confirm the terms by email reply 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, the Agents applicable 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. Such Agents Agent 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 the Agents applicable Agent will be successful in selling all or any of such Shares, (y) the Agents applicable Agent shall incur no liability or obligation to the Company or any other person or entity if they do 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 the Agents applicable Agent may, upon notice to the other party 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 Agents 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) The Agentsapplicable Agent, as sales agents 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 distribution’ ” in National Instrument NI 44-102 - Shelf Distributions102, provided that such transactions are made on an exchange outside Canada, and (y) such other sales of the Shares on behalf of the Company in their its capacity as agents agent of the Company as shall be agreed by the Company and the Agents applicable Agent in writing. The Agents Agents, severally and not jointly, covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an ‘“at-the-market distribution’ ” (as defined in NI 44-102) or enter into any transaction or engage in any transactions that are intended to stabilize or maintain the market price of the Shares, including selling an aggregate number or principal amount of Shares that would result in the underwriter creating an over-allocation position in the securities. The Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Shares.
(vii) The compensation to the Agents a particular Agent for sales of the Shares in an Agency Transaction with respect to which such Agents act Agent acts as sales agents agent hereunder shall be 3.5as set forth in the Agency Transaction Notice for such Agency Transaction but shall not exceed 2.0% of the gross offering proceeds of the Shares sold in such Agency Transaction. The Agents applicable 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 Nasdaq NYSE on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (w) the number of Shares sold on such Trading Day, (x) the gross offering proceeds received from such sales, (y) the commission payable by the Company to the Agents with respect to such sales and (z) 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 second Trading Day (and on and after May 28, 2024 (or such earlier day later date on which the Commission’s final rule with respect to the shortening of the securities transaction settlement cycle becomes effective), on the first Trading Day, or any such shorter settlement cycle as is industry practice for regularmay be in effect pursuant to Rule 15c6-way trading1 under the Exchange Act from time to time) following the date on which such sales are made made, unless another date shall be agreed to in writing by the Company and the applicable Agent (each such day, an ‘“Agency Settlement Date’”). On each Agency Settlement Date, the Shares sold through the Agents applicable Agent in Agency Transactions for settlement on such date shall be issued and delivered by the Company to the Agents applicable Agent against payment by the Agents applicable 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 the Agents’ applicable Agent’s or their its designee’s account (provided that such Agents 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 Agents 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 Agents any commission, discount or other compensation to which they would otherwise be entitled absent such default; provided however, that without limiting Section 5 herein, with respect to (ii) above, the Company shall not be obligated to pay the Agents any commission, discount or other compensation on any Shares that it is not possible to settle due to: (A) a suspension or material limitation in trading in securities generally on the TSX Venture Exchange (‘TSXV’) or the Nasdaq; (B) a material disruption in securities settlement or clearance services in the United States or Canada; or (C) failure by the Agents to comply with their obligations under the terms of this Agreement.
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Samples: Equity Distribution Agreement (First Majestic Silver Corp)
