Issuance and Sale of Equity and Notes Sample Clauses
Issuance and Sale of Equity and Notes
Issuance and Sale of Common Shares Section 2.01 (a)
Issuance and Sale of Securities The Company proposes, subject to the terms and conditions stated herein, to issue and sell to you and each of the other Underwriters named in Schedule I hereto (collectively, the “Underwriters”, which term shall also include any underwriter substituted as hereinafter provided in Section 11 hereof), for whom you are acting as representatives (in such capacity, the “Representatives”) $175,000,000 in aggregate principal amount of the Company’s 6.375% Convertible Notes due 2025 (the “Firm Securities”) and, at the election of the Underwriters, up to an additional $26,250,000 in aggregate principal amount of the Company’s 6.375% Convertible Notes due 2025 (the “Optional Securities”). The Firm Securities and the Optional Securities that the Underwriters elect to purchase pursuant to Section 4 hereof being collectively called the “Securities”. The Securities will be convertible into shares of the Company’s common stock (par value $0.001 per share) (the “Underlying Securities”). The Securities will be issued pursuant to an indenture, dated as of February 16, 2012, as amended (the “Base Indenture”), between the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by a supplemental indenture, to be dated as of March 1, 2019, between the Company and the Trustee (the “Supplemental Indenture” and together with the Base Indenture, the “Indenture”). The issuance and sale of Securities to the Underwriters will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”). The Company has entered into an investment advisory and management agreement, dated as of July 24, 2004, as renewed on June 19, 2018, by the Board of Directors (the “Investment Advisory Agreement”), with the Adviser under the Advisers Act. The Company has entered into an administration agreement, dated as of July 24, 2004, as renewed on June 19, 2018, by the Board (the “Administration Agreement”), with the Administrator. The Company has filed, pursuant to the 1933 Act, with the Commission a registration statement on Form N-2 (File No. 333-227124), which registers the offer and sale of certain securities to be issued from time to time by the Company, including the Securities. The Indenture has been qualified under the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (the “Trust Indenture Act”). The Company filed a Form N-54A “Notification of Election to be Subject to Sections 55 through 65 of the 1940 Act Filed Pursuant to Section 54(a) of the 1940 Act” (File No. 814-00659) with the Commission on April 16, 2004, under the 1940 Act. The registration statement, as amended, when it became effective and any post-effective amendment thereto, including in each case all documents filed as a part thereof, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 497 under the 1933 Act or deemed to be part of such registration statement pursuant to Rule 430C under the 1933 Act is hereinafter referred to as the “Registration Statement.” The prospectus, in the form it was included in the Registration Statement at the time it was declared effective is hereinafter referred to as the “Base Prospectus.” The Base Prospectus, together with the preliminary prospectus supplement, dated February 26, 2019, filed with the Commission pursuant to Rule 497 under the 1933 Act, is hereinafter referred to as the “Preliminary Prospectus.” The Base Prospectus, together with the prospectus supplement to be filed with the Commission pursuant to Rule 497 following execution of this Agreement, is hereinafter referred to as the “Prospectus.” The Preliminary Prospectus, together with the information included on Schedule III hereto in accordance with Rule 482 under the 1933 Act and filed with the Commission pursuant to Rule 497 under the 1933 Act on February 27, 2019, is hereinafter referred to collectively as the “Pricing Disclosure Package.” All references in this Agreement to financial statements and schedules and other information which is “contained,” “disclosed,” “included,” “filed as part of” or “stated” in the Registration Statement, the Pricing Disclosure Package or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which are or are deemed to be incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, the Pricing Disclosure Package or the Prospectus shall be deemed to mean and include the filing of any document under the Exchange Act which is or is deemed to be incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus, as the case may be. All references in this Agreement to the Registration Statement, the Pricing Disclosure Package, the Prospectus or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”).
Issuance and Sale of Shares The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the Agent, shares (the “Placement Shares”) of common stock of the Company, $0.0001 par value per share (the “Common Stock”), having an aggregate offering price of up to $50,000,000, provided, however, that in no event shall the Company issue or sell through Agent such number of Placement Shares that (a) exceeds the number of shares or dollar amount of shares of Common Stock that may be sold pursuant to the Registration Statement (as defined below), or (b) exceeds the number of authorized but unissued shares of Common Stock of the Company (the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that Agent shall have no obligation in connection with such compliance. The issuance and sale of Placement Shares through or to Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue any Placement Shares. The Company has filed or will file, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”), with the Commission a registration statement on Form S-3, including a base prospectus relating to certain securities, including the Common Stock, to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”). The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of such registration statement. The Company will furnish to the Agent, for use by the Agent, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement, if any, relating to the Placement Shares. Except where the context otherwise requires, such registration statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act, or any subsequent registration statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company to cover any Placement Shares, is herein called the “Registration Statement.” The base prospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act, together with any then issued Issuer Free Writing Prospectus (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto, shall be deemed to refer to and include the documents incorporated or deemed to be incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein (the “Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “XXXXX”).
Purchase and Sale of Convertible Debentures 6 2.2 Purchase and Sale; Purchase Price....................................6 2.2 Execution and Delivery of Documents; the Closing.....................6 2.3 The Post-Closing.....................................................7
Purchase and Sale of Notes (a) Subject to the terms and conditions of this Agreement, each Purchaser agrees to purchase and the Company agrees to sell and issue to each Purchaser at the Closing (as defined below) the principal amount of Notes of the Company as is set forth opposite such Purchaser’s name on such Purchaser’s signature page hereto. The Notes issued to the Purchasers pursuant to this Agreement (including any notes issued at the Initial Closing and any Additional Notes, as defined below) shall be referred to in this Agreement as the “Notes.” Each Note shall be in the form attached hereto as Exhibit A hereto. (b) The initial purchase and sale of the Notes shall take place remotely via the electronic exchange of documents and signatures on the Business Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i) the Purchasers’ obligation to pay the Subscription Amount at such Closing, and (ii) the Company’s obligations to deliver the Securities to be issued and sold at such Closing, in each case, have been satisfied or waived, but in no event later than the tenth Business Day following the date hereof (such initial closing is referred to herein as the “Initial Closing”). (c) After the Initial Closing, the Company may sell, in one or more closings and on the terms and conditions contained in this Agreement, Notes in the aggregate principal amount of up to $6,000,000 (collectively, the “Additional Notes”), to one or more purchasers (the “Additional Purchasers”) reasonably acceptable to the Company, provided that (A) such subsequent sale is consummated prior to October 1, 2020 (the “Termination Date”), or such date as the Company and a Majority in Interest may mutually agree upon; and (B) each Additional Purchaser shall become a party to the Transaction Documents by executing and delivering a counterpart signature page to each of the Transaction Documents. Signature pages shall be added to this Agreement to reflect the amount of Additional Notes purchased at each such closing (an “Additional Closing” and together with the Initial Closing, each, a “Closing”) and the parties purchasing such Additional Notes. (d) At each Closing, the payment by a Purchaser of such Purchaser’s Subscription Amount may be made via wire transfer or a certified check in immediately available funds to the Company.
Purchase and Sale of the Private Placement Warrants (i) On the date of the consummation of the Public Offering (the “Initial Closing Date”), the Company shall issue and sell to the Purchaser, and the Purchaser shall purchase from the Company, the number of Private Placement Warrants set forth on the signature page to this Agreement next to the line item “Total Number of Warrants Purchased” at a price of $1.00 per warrant for the aggregate purchase price set forth on the signature page to this Agreement next to the line item “Aggregate Purchase Price” (the “Purchase Price”). The Purchaser shall pay the Purchase Price by wire transfer of immediately available funds to the Company or an account designated by the Company in accordance with the Company’s wiring instructions to be provided separately in advance of the Closing Date. On the Initial Closing Date, upon the payment by the Purchaser of the Purchase Price, the Company, at the Purchaser’s option, shall deliver a certificate evidencing the Private Placement Warrants duly registered in the Purchaser’s name to the Purchaser, or effect such delivery in book-entry form. (ii) On the date of the consummation of the closing of the over-allotment option in connection with the Public Offering or on such earlier time and date as may be mutually agreed by the Purchaser and the Company (each such date, an “Over-allotment Closing Date”, and each such Over-allotment Closing Date (if any) and the Initial Closing Date being sometimes referred to herein as a “Closing Date”), the Company shall issue and sell to the Purchaser, and the Purchaser shall purchase from the Company, up to the number of Private Placement Warrants set forth on the signature page to this Agreement next to the line item “Total Number of Over-allotment Warrants” at a price of $1.00 per warrant for an aggregate purchase price of up to the amount set forth on the signature page to this Agreement next to the line item “Aggregate Purchase Price of Over-allotment Warrants” (if the over-allotment option in connection with the Public Offering is exercised in full) (the “Over-allotment Purchase Price”). The Purchaser shall pay the Over-allotment Purchase Price by wire transfer of immediately available funds to the Company or an account designated by the Company, in accordance with the Company’s wiring instructions to be provided separately in advance of the Closing Date. On the Over-allotment Closing Date, upon the payment by the Purchaser of the Over-allotment Purchase Price, the Company shall, at the Purchaser’s option, deliver a certificate evidencing the Private Placement Warrants purchased by the Purchaser on such date duly registered in the Purchaser’s name to the Purchaser, or effect such delivery in book-entry form in accordance with the Warrant Agreement (as defined below).
Purchase and Sale of Notes and Warrants (a) Upon the following terms and conditions, the Company shall issue and sell to the Purchasers, and the Purchasers shall purchase (in the amounts set forth in Exhibit A hereto) from the Company, secured promissory notes in the aggregate principal amount of up to Three Million Dollars ($3,000,000), in substantially the form attached hereto as Exhibit B (the “Notes”). The Company and the Purchasers are executing and delivering this Agreement in accordance with and in reliance upon the exemption from securities registration afforded by Section 4(2) of the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), including Regulation D (“Regulation D”), and/or upon such other exemption from the registration requirements of the Securities Act as may be available with respect to any or all of the investments to be made hereunder. (b) Upon the following terms and conditions and for no additional consideration, each of the Purchasers shall be issued at the Initial Closing Date (as defined below) Warrants, in substantially the form attached hereto as Exhibit C (the “Warrants”), to purchase an aggregate of up to 2,000,000 shares of the Company’s common stock, no par value (the “Common Stock”). The Warrants shall expire seven (7) years following the Initial Closing Date and shall have an exercise price per share equal to the Warrant Price (as defined in the Warrant).
Purchase and Sale of the Notes (a) The Issuer agrees to issue and sell the Notes to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Issuer the respective principal amount of Notes set forth opposite such Underwriter’s name in Schedule 1 hereto at a price equal to [ ]% of the principal amount of the Notes, plus accrued interest, if any, from [ ], [ ], to the Closing Date (as defined below). (b) The Issuer acknowledges and agrees that the Underwriters may offer and sell Notes to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Notes purchased by it to or through any Underwriter. (c) The Issuer understands that the Underwriters intend to make a public offering of the Notes as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Notes on the terms set forth in the Time of Sale Information. (d) The Issuer and each Guarantor acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Issuer and each Guarantor with respect to the offering of the Notes contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Issuer, any Guarantor or any other person. Additionally, neither the Representatives nor any other Underwriter are advising the Issuer, any Guarantor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuer and each Guarantor shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representatives nor any other Underwriter shall have any responsibility or liability to the Issuer or any Guarantor with respect thereto. Any review by the Representatives or any Underwriter of the Issuer, any Guarantor, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Underwriter, as the case may be, and shall not be on behalf of the Issuer, any Guarantor or any other person. The Issuer agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Issuer, in connection with such transactions or the process leading thereto.
Purchase and Sale of Common Shares (a) Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties set forth in Schedule B to this Agreement, the Purchaser hereby agrees to purchase from the Company and the Company hereby agrees to sell to the Purchaser, on the Closing Date, 104,500,000 Common Shares (the “Purchased Shares”) at a price of $48.60 per Purchased Share for an aggregate purchase price of $5,078,700,000 (the “Share Purchase Price”). (b) The Purchaser shall purchase the Purchased Shares and pay the Share Purchase Price on the Closing Date, by wire transfer of immediately available funds to an account designated in writing by the Company. The Purchased Shares shall be issued to the Purchaser on Closing by way of: (i) (A) a book entry only position or other electronic deposit on the records of the Company’s transfer agent containing notations of the legends contemplated by this Agreement, together with delivery of an ownership statement to the Purchaser; and (B) the deposit of a certificate evidencing the Purchased Shares to The Canadian Depository for Securities Limited as depository, bearing a restricted CUSIP designation referencing the legends contemplated by this Agreement, for credit to the participant and brokerage account of the Purchaser, as directed by the Purchaser; or (ii) physical delivery of a certificate representing the Purchased Shares registered in the name of the Purchaser or in such other name as the Purchaser shall notify the Company in writing not less than one Business Day prior to the Closing.
Purchase and Sale of Units The Purchaser hereby subscribes for and purchases from the Company, and the Company hereby issues and sells to the Purchaser, 25,000 units (the “Initial Units”) at a purchase price of approximately $.003478 per Initial Unit for an aggregate purchase price of $86.95. Each Initial Unit consists of one share of Common Stock and one warrant (an “Initial Warrant”) to purchase one additional share of Common Stock for $6.00 in accordance with the terms of the Warrant Agreement to be entered into by and between the Company and Continental Stock Transfer & Trust Company, as warrant agent, which shall be substantially in the form attached hereto as Exhibit A (the “Warrant Agreement”). The Initial Units, together with the underlying Common Stock and the Initial Warrants, are referred to herein as the “Securities.”