Purchase of the Shares by the Underwriters. (a) The Company agrees to issue and sell the Shares 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 Company the respective number of Shares set forth opposite such Underwriter’s name in Schedule 1 hereto at a price per share of $987.50 (the “Purchase Price”). (b) The Company understands that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness of this Agreement as in their judgment is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any affiliate of an Underwriter. (c) Payment for and delivery of the Shares shall be made by wire transfer in immediately available funds to the account specified by the Company to the Underwriters at the offices of Xxxxxx Xxxxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 9:00 A.M., New York City time, on August 25, 2016, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Company and the Underwriters may agree upon in writing. The time and date of such payment for the Shares is referred to herein as the “Closing Date”. Payment for the Shares to be purchased on the Closing Date shall be made against delivery to the Representatives for the respective accounts of the several Underwriters of the Shares to be purchased on such date with any transfer taxes payable in connection with the sale of such Shares duly paid by the Company. The Shares shall be in global form, as specified by the Representatives, and shall be delivered through the facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct. The Shares shall be registered in such names and such denominations as the Representatives shall request in writing not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
Appears in 1 contract
Purchase of the Shares by the Underwriters. (a) The Company agrees to issue and sell the Shares 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 herein, agrees, severally and not jointly, to purchase from the Company at a purchase price per Share of 5 1/8% Cumulative Convertible Perpetual Preferred Stock, Series D equal to $970.0 (the “Purchase Price”) the respective number of Shares set forth opposite the name of such Underwriter’s name Underwriter in Schedule 1 hereto at a price per share of $987.50 (the “Purchase Price”)I hereto.
(b) The Company understands that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness of this Agreement as in their the judgment of the Representative is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Shares purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Shares shall be made by wire transfer in immediately available funds to the account specified by the Company to the Underwriters Attorneys-in-Fact (as defined below), or any of them at the offices of Xxxxxx Xxxxxx Dxxxx Xxxx & Xxxxxxx llpWxxxxxxx, 00 Xxxx 400 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx X.X. 00000 at 9:00 A.M., 10:00 A.M. New York City timetime on December 9, on August 25, 20162005, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Company Representative and the Underwriters Company may agree upon in writing. The time and date of such payment for the Shares is are referred to herein as the “Closing Date”. Payment for the Shares to be purchased on the Closing Date shall be made against delivery to the Representatives Representative for the respective accounts of the several Underwriters of the Shares to be purchased on such date in definitive form registered in such names and in such denominations as the Representative shall request in writing not later than two full business days prior to the Closing Date, with any transfer taxes payable in connection with the sale of such the Shares duly paid by the Company. The certificates for the Shares shall will be in global form, as specified made available for inspection and packaging by the Representatives, and shall be delivered through Representative at the facilities office of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct. The Shares shall be registered in such names and such denominations as the Representatives shall request in writing Mxxxxx Sxxxxxx & Co. Incorporated set forth above not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
(d) The Company acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representative nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company.
Appears in 1 contract
Purchase of the Shares by the Underwriters. (a) The Company agrees to issue and sell the Shares 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 herein, agrees, severally and not jointly, to purchase from the Company the respective number of Shares set forth opposite such Underwriter’s 's name in Schedule 1 I hereto at a price per share (the "Purchase Price") of $987.50 (the “Purchase Price”)25.13.
(b) The Company understands that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness of this Agreement as in their the judgment of the Representative is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Shares purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Shares shall be made by wire transfer in immediately available funds to the account specified by the Company to the Underwriters Representative at the offices of Pxxxxxx Xxxxx & Exxxx LLP, 900 Xxxxxx Xxxxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx, Xxx XxxxXxxxx 0000, Xxx Xxxx Xxxxxxx, Xxxxxxxxxx 00000 at 9:00 A.M., 10:00 A.M. New York City time, time on August 2527, 20162004, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Company Representative and the Underwriters Company may agree upon in writing. The time and date of such payment for the Shares is referred to herein as the “"Closing Date”". Payment for the Shares to be purchased on the Closing Date shall be made against delivery to the Representatives Representative, through the facilities of The Depository Trust Company for the respective accounts of the several Underwriters Underwriters, of the Shares registered in such names and in such denominations as the Representative shall request in writing not later than two full business days prior to be purchased on such date the Closing Date with any transfer taxes payable in connection with the sale of such the Shares duly paid by the Company. The Shares shall be in global form, as specified by the Representatives, and shall be delivered through the facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct. The Shares shall be registered in such names and such denominations as the Representatives shall request in writing not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
Appears in 1 contract
Purchase of the Shares by the Underwriters. (a) The On the basis of the representations, warranties and covenants herein contained, and subject to the conditions herein set forth, each of the Forward Seller (with respect to the Borrowed Underwritten Shares) and the Company (with respect to any Standby Underwritten Shares), severally and not jointly, agrees to issue and sell the Shares to the several Underwriters as provided in this Agreement, and each Underwriter agrees, severally and not jointly, to purchase from the Forward Seller (with respect to the Borrowed Underwritten Shares) and the Company (with respect to any Standby Underwritten Shares), at a price per share (the “Purchase Price”) of $67.05, the number of Underwritten Shares set forth opposite such Underwriter’s name in Schedule 1 hereto subject, in each case, to such adjustments to eliminate any fractional Shares as the Representative in its sole discretion shall make.
(b) In addition, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein herein, the Underwriters shall have the option to purchase pursuant to clause (i) or clause (ii) below, as applicable, severally and not jointly, the Option Shares at the Purchase Price less an amount per share equal to any dividends or distributions declared by the Company and payable on the Underwritten Shares but not payable on the Option Shares (the “Option Purchase Price”). The Underwriters may exercise the option to purchase Option Shares at any time in whole, or from time to time in part, on or before the thirtieth day following the date of the Prospectus, by written notice from the Representative to the Company. Such notice shall set forth the aggregate number of Option Shares as to which the option is being exercised and the date and time when the Option Shares are to be delivered and paid for, which may be the same date and time as the Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date or later than the tenth full business day (as hereinafter defined) after the date of such notice (unless such time and date are postponed in accordance with the provisions of Section 10 hereof). Any such notice shall be given at least two business days prior to the date and time of delivery specified therein. Following delivery of an exercise notice:
(i) The Company may, in its sole discretion, within one business day after such notice is given, execute and deliver to the Forward Seller an additional letter agreement substantially in the form attached hereto as Schedule 2 between the Company and the Forward Counterparty (an “Additional Forward Agreement”) providing for the forward sale by the Company, subject to the Company’s right to elect cash settlement of such agreement, of a number of shares of Common Stock equal to the aggregate number of Option Shares being purchased by the Underwriters from the Forward Seller pursuant to the exercise of such option. Upon the Company’s execution and delivery to the Forward Seller of such Additional Forward Agreement, the Forward Counterparty shall promptly execute and deliver such Additional Forward Agreement to the Company, and upon such execution and delivery to the Company, on the basis of the representations, warranties and agreements contained herein, and subject to the conditions stated herein, each of the Forward Seller and the Company (with respect to any Standby Option Shares), severally and not jointly, hereby agrees to sell to the several Underwriters such number of Option Shares at the Option Purchase Price.
(ii) If the Company does not timely execute and deliver the Additional Forward Agreement pursuant to clause (i) above, then on the basis of the representations, warranties and agreements contained in this Agreement, and subject to the terms and conditions stated herein, the Company hereby agrees to sell to the several Underwriters the aggregate number of Option Shares with respect to which the option is being exercised at the Option Purchase Price. On each Additional Closing Date (as defined in Section 2(g) hereof), if any, each Underwriter agrees, severally and not jointly, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, to purchase from the Company or the respective Forward Seller, as applicable, at the Option Purchase Price, the number of Option Shares that bears the same ratio to the aggregate number of Option Shares being purchased on such Additional Closing Date as the number of Underwritten Shares set forth opposite the name of such Underwriter’s name Underwriter in Schedule 1 hereto at a price per share (or such number increased as set forth in Section 10 hereof) bears to the aggregate number of $987.50 Underwritten Shares being purchased by the several Underwriters, subject, however, to such adjustments to eliminate any fractional Shares as the Representative in its sole discretion shall make.
(c) If any of the conditions to effectiveness set forth in Section 3 of the Forward Agreement is not satisfied on or prior to the Closing Date, the Forward Seller, in its sole judgment, may choose not to borrow and deliver for sale the Borrowed Underwritten Shares to be sold by the Forward Seller hereunder. In addition, in the event that, in the commercially reasonable judgment of the Forward Counterparty, the Forward Seller is unable to borrow and deliver for sale under this Agreement all of the Borrowed Underwritten Shares to be sold by the Forward Seller hereunder, then the Forward Seller shall only be required to deliver for sale the aggregate number of shares of Common Stock that the Forward Seller is able to so borrow.
(d) If the Company has entered into an Additional Forward Agreement with the Forward Counterparty pursuant to Section 2(b)(i) hereof, and any of the conditions to effectiveness set forth in Section 3 of the relevant Additional Forward Agreement (the “Purchase PriceAdditional Conditions”)) is not satisfied on or prior to the relevant Additional Closing Date, then the Forward Seller, in its sole judgment, may choose not to borrow and deliver for sale to the Underwriters on the relevant Additional Closing Date the Borrowed Option Shares. In addition, in the event that, in the commercially reasonable judgment of the Forward Counterparty, the Forward Seller is unable to borrow and deliver for sale under this Agreement all of the Borrowed Option Shares to be sold on the relevant Additional Closing Date, then the Forward Seller shall only be required to deliver for sale to the Underwriters on the relevant Additional Closing Date the aggregate number of shares of Common Stock that the Forward Seller is able to so borrow.
(be) If (i) pursuant to Section 2(c), the Forward Seller does not borrow and deliver for sale to the Underwriters on the Closing Date the number of Borrowed Underwritten Shares deliverable by the Forward Seller pursuant to this Agreement, or (ii) the Forward Counterparty has entered into an Additional Forward Agreement with the Company pursuant to Section 2(b)(i) hereof and, pursuant to Section 2(d), the Forward Seller does not borrow and deliver for sale to the Underwriters on the relevant Additional Closing Date the number of Borrowed Option Shares for such Additional Closing Date, then, in each case, the Forward Seller will use its commercially reasonable efforts to notify the Company no later than 5:00 P.M., New York City time, on the first business day prior to the Closing Date or such Additional Closing Date, as the case may be.
(f) The Company understands that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness of this Agreement as in their the judgment of the Representative is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any affiliate of an Underwriter.
(cg) Payment for and delivery of the Shares shall be made by wire transfer in immediately available funds to the account specified by the Company Forward Seller (with respect to the Underwriters Borrowed Shares) or the Company (with respect to any Company Shares) to the Representative at the such offices of Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxx LLP at 9:00 10:00 A.M., New York City time, on August 25January 21, 20162015, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Company Representative, the Forward Seller and the Underwriters Company may agree upon in writingwriting or, in the case of the Option Shares, on the date and at the time and place specified by the Representative in the written notice of the Underwriters’ election to purchase such Option Shares. The time and date of such payment for the Underwritten Shares is referred to herein as the “Closing Date”, and the time and date for such payment for any Option Shares, if other than the Closing Date, is herein referred to as the “Additional Closing Date”. Payment for the Shares to be purchased on the Closing Date or any Additional Closing Date, as the case may be, shall be made against delivery to the Representatives Representative for the respective accounts of the several Underwriters of the Shares to be purchased on such date or the relevant Additional Closing Date, as the case may be, with any transfer taxes payable in connection with the sale of such Shares duly paid by the Company. The Delivery of the Shares shall be in global form, as specified by the Representatives, and shall be delivered made through the facilities of The Depository Trust Company (“DTC”) unless the Representatives Representative shall otherwise instruct. The certificates for the Shares shall will be registered in such names made available for inspection and such denominations as packaging by the Representatives shall request in writing Representative at the office of DTC or its designated custodian not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date or the relevant Additional Closing Date, as the case may be.
(h) The Company acknowledges and agrees that the Underwriters, the Forward Seller and the Forward Counterparty are each acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, none of the Representative, any other Underwriter, the Forward Seller or the Forward Counterparty is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company 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 none of the Underwriters, the Forward Seller or the Forward Counterparty shall have any responsibility or liability to the Company with respect thereto. Any review by the Underwriters, the Forward Seller or the Forward Counterparty of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters, the Forward Seller and the Forward Counterparty and shall not be on behalf of the Company.
Appears in 1 contract
Purchase of the Shares by the Underwriters. (a) The On the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, each of the Forward Sellers (with respect to the Borrowed Underwritten Shares) and the Company (with respect to any Company Top-Up Underwritten Shares), severally and not jointly, agrees to issue sell to the several Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Forward Sellers (with respect to the Borrowed Underwritten Shares) and the Company (with respect to any Company Top-Up Underwritten Shares) the respective number of Underwritten Shares set forth opposite such Underwriter’s name in Schedule 1 hereto at a price per share (the “Purchase Price”) of $33.95.
(b) On the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, the Underwriters shall have the option to purchase severally and not jointly, the Option Shares at the Purchase Price less an amount per share equal to any dividends or distributions declared by the Company and payable on the Underwritten Shares but not payable on the Option Shares (the “Option Purchase Price”). The Underwriters may exercise the option to purchase Option Shares at one time in whole or in part, on or before the thirtieth day following the date of the Prospectus, by written notice from the Representatives to the Company. Such notice shall set forth the aggregate number of Option Shares as to which the option is being exercised and the date and time when the Option Shares are to be delivered and paid for, which may be the same date and time as the Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date or later than the fifth full business day (as hereinafter defined) after the date of such notice (unless such time and date are postponed in accordance with the provisions of Section 9 hereof). Any such notice shall be given at least two business days prior to the date and time of delivery specified therein. Following delivery of an exercise notice, the Company shall, within one business day after such notice is given, execute and deliver to each of the Forward Sellers an additional letter agreement substantially in the form attached hereto as Schedule 2 between the Company and such Forward Purchasers (the “Additional Forward Sale Agreements”) providing for the forward sale by the Company, subject to the Company’s right to elect Cash Settlement or Net Share Settlement (as such terms are defined in such Additional Forward Sale Agreements), of a number of shares of Common Stock equal to the aggregate number of Option Shares being purchased by the Underwriters from the Forward Sellers pursuant to the exercise of such option. Upon the Company’s execution and delivery to the Forward Sellers of such Additional Forward Sale Agreements, the Forward Purchasers shall promptly execute and deliver such Additional Forward Sale Agreements to the Company, and upon such execution and delivery to the Company, on the basis of the representations, warranties and agreements set forth herein, and subject to the conditions set forth herein, each of the Forward Sellers (with respect to any Borrowed Option Shares) and the Company (with respect to any Company Top-Up Option Shares), severally and not jointly, hereby agrees to sell the Shares to the several Underwriters such number of Option Shares at the Option Purchase Price. On the Additional Closing Date (as provided defined in this AgreementSection 2(g) hereof), if any, each Underwriter agrees, severally and each Underwriternot jointly, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein agrees, severally and not jointlyherein, to purchase from the Company or the respective Forward Sellers, as applicable, at the Option Purchase Price, the number of Option Shares that bears the same ratio to the aggregate number of Option Shares being purchased on the Additional Closing Date as the number of Underwritten Shares set forth opposite the name of such Underwriter’s name Underwriter in Schedule 1 hereto at a price per share (or such number increased as set forth in Section 9 hereof) bears to the aggregate number of $987.50 (Underwritten Shares being purchased by the “Purchase Price”)several Underwriters, subject, however, to such adjustments to eliminate any fractional Shares as the Representatives in their sole discretion shall make.
(bc) If (i) any of the representations and warranties of the Company contained in Section 3.A hereof or any certificate delivered by the Company pursuant hereto are not true and correct as of the Closing Date as if made as of the Closing Date, (ii) the Company has not performed in all material respects all of the obligations required to be performed by it under this Agreement on or prior to the Closing Date, (iii) any of the conditions set forth in Section 5 hereof have not been satisfied on or prior to the Closing Date, (iv) this Agreement shall have been terminated pursuant to Section 8 hereof on or prior to the Closing Date, or (v) the Company has not delivered to the Forward Purchasers an opinion of counsel pursuant to Section 3(g) of the Forward Sale Agreements, on or prior to the Closing Date (clauses (i) through (v), together, the “Conditions”), each of the Forward Sellers, in its sole discretion, may elect not to borrow and deliver for sale to the Underwriters the Borrowed Underwritten Shares. In addition, in the event that, in any of the Forward Purchasers’ commercially reasonable judgment, (A) any of the Forward Sellers is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Underwritten Shares, or (B) any of the Forward Sellers would incur a stock loan cost of more than a rate equal to 75 basis points per annum to do so, then, in each case, such Forward Seller shall only be required to deliver for sale to the Underwriters on the Closing Date the aggregate number of shares of Common Stock that such Forward Seller is able to so borrow at or below such cost.
(d) If the Company has entered into Additional Forward Sale Agreements with the Forward Purchasers pursuant to Section 2(b) hereof, and (i) any of the representations and warranties of the Company contained in Section 3.A hereof or any certificate delivered pursuant hereto are not true and correct in all material respects as of the Additional Closing Date, (ii) the Company has not performed all of the additional obligations required to be performed by it under this Agreement on or prior to the Additional Closing Date, (iii) any of the conditions set forth in Section 5 hereof have not been satisfied on or prior to the Additional Closing Date, (iv) this Agreement shall have been terminated pursuant to Section 8 hereof on or prior to the Additional Closing Date, or (v) the Company has not delivered to the Forward Purchasers an opinion of counsel pursuant to Section 3(g) of the Additional Forward Sale Agreements, on or prior to the Additional Closing Date (clauses (i) through (v), together, the “Additional Conditions”), then each of the Forward Sellers, in its sole discretion, may elect not to borrow and deliver for sale to the Underwriters on the Additional Closing Date the Borrowed Option Shares. In addition, in the event that, in any of the Forward Purchasers’ commercially reasonable judgment, (A) any of the Forward Sellers is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Option Shares, or (B) any of the Forward Sellers would incur a stock loan cost of more than a rate equal to 75 basis points per annum to do so, then, in each case, such Forward Seller shall only be required to deliver for sale to the Underwriters on the Additional Closing Date the aggregate number of shares of Common Stock that such Forward Sellers is able to so borrow at or below such cost.
(e) If (i) a Forward Seller elects, pursuant to Section 2(c) hereof, not to borrow and deliver for sale to the Underwriters on the Closing Date the total number of Borrowed Underwritten Shares, or (ii) a Forward Purchaser has entered into an Additional Forward Sale Agreements with the Company pursuant to Section 2(b) hereof and such Forward Seller elects, pursuant to Section 2(d) hereof, not to borrow and deliver for sale to the Underwriters on the Additional Closing Date the total number of Borrowed Option Shares for the Additional Closing Date, in either case, such Forward Sellers will use commercially reasonable efforts to notify the Company no later than 5:00 p.m., New York City time, on the second business day prior to the Closing Date or the Additional Closing Date, as the case may be.
(f) The Company understands that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness of this Agreement as in their the judgment of the Representatives is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any affiliate of an UnderwriterUnderwriter (a “Participating Affiliate”).
(cg) Payment for and delivery of the Shares shall be made by wire transfer in immediately available funds to the account specified to the Representatives by the Company to in the Underwriters case of Underwritten Shares in connection with a closing at the offices of Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Xxxxx LLP at 9:00 10:00 A.M., New York City time, on August 25June 17, 20162014, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Company Representatives, the Forward Sellers and the Underwriters Company may agree upon in writingwriting or, in the case of the Option Shares, on the date and at the time and place specified by the Representatives in the written notice of the Underwriters’ election to purchase such Option Shares. The time and date of such payment for the Underwritten Shares is referred to herein as the “Closing Date”, and the time and date for such payment for the Option Shares, if other than the Closing Date, is herein referred to as the “Additional Closing Date”. Payment for the Shares to be purchased on the Closing Date or Additional Closing Date (if any), as the case may be, shall be made against delivery to the Representatives for the respective accounts of the several Underwriters of the Shares to be purchased on such date or the Additional Closing Date, as the case may be, with any transfer taxes payable in connection with the sale of such Shares duly paid by the CompanyCompany (with respect to any Company Shares). The Delivery of the Shares shall be in global form, as specified by the Representatives, and shall be delivered made through the facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct. The certificates for the Shares shall will be registered in such names made available for inspection and such denominations as packaging by the Representatives shall request in writing at the office of DTC or its designated custodian not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date or the Additional Closing Date, as the case may be.
Appears in 1 contract
Samples: Underwriting Agreement (Exelon Corp)
Purchase of the Shares by the Underwriters. (a) The Company agrees to issue and sell the Shares 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 herein, agrees, severally and not jointly, to purchase from the Company the respective aggregate number of Initial Shares set forth opposite such Underwriter’s name in Schedule 1 hereto at a purchase price per share Initial Share of $987.50 (the “Purchase Price”)25.7469.
(b) In addition, on the basis of the representations and warranties contained herein and upon the terms and subject to the conditions set forth herein, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase, solely to cover overallotments, all or any portion of the Option Shares, at the same price set forth in Section 2(a) for the Initial Shares, less an amount per Option Share equal to any dividends or distributions declared by the Company and payable on the Initial Shares but not payable on the Option Shares. The option hereby granted will expire on the date that is 30 days after the date hereof and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company setting forth the number of Option Shares as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option Shares. Any such time and date of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than November 23, 2013, nor in any event prior to the Closing Date or less than two business days after the date such notice is provided to the Company, unless such notice is provided to the Company at least one business day prior to the Closing Date, in which case such Date of Delivery shall be the Closing Date. If the option is exercised as to all or any portion of the Option Shares, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Shares then being purchased which the number of Initial Shares set forth in Schedule 1 opposite the name of such Underwriter bears to the total number of Initial Shares, subject in each case to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional shares.
(c) The Company understands that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness execution of this Agreement as in their the judgment of the Representatives is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any affiliate of an Underwriter.
(cd) Payment for and delivery of the Initial Shares shall be made by wire transfer in immediately available funds to the account specified by the Company to the Underwriters Representatives at the offices of Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxxxx LLP at 0000 Xxxxxxx llpXxxx Xxxx, 00 Xxxx XxxxxxXxxxx 0000, Xxx XxxxXxxxxxx, Xxx Xxxx XX 00000 at 9:00 A.M., New York City time, on August 25October 30, 20162013, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Company Representatives and the Underwriters Company may agree upon in writing. The time and date of such payment for the Shares is referred to herein as the “Closing Date”.” In addition, if any or all of the Option Shares are purchased by the Underwriters, payment of the purchase price for such Option Shares shall be made at the above-mentioned offices, or at such other place as shall be agreed upon by the Representatives and the Company, on the Date of Delivery specified in the applicable notice from the Representatives to the Company. Payment for the Shares to be purchased on the Closing Date shall be made against delivery to the Representatives for the respective accounts of the several Underwriters of the Shares to be purchased on such date with any transfer taxes payable in connection with the sale of such Shares duly paid by the Company. The Delivery of the Shares shall be in global form, as specified by the Representatives, and shall be delivered made through the facilities of DTC unless the Representatives shall otherwise instruct. The certificates for the Shares, if any, will be made available for inspection and packaging by the Representatives at the office of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct. The Shares shall be registered in such names and such denominations as the Representatives shall request in writing or its designated custodian not later than 1:00 P.M., New York City time, on the business day prior to the Closing DateDate or a Date of Delivery, as applicable.
(e) The Company acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company 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 the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Fidelity National Financial, Inc.)
Purchase of the Shares by the Underwriters. (a) The Company agrees Selling Stockholders agree, severally and not jointly, to issue and sell the Underwritten Shares 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 herein, agrees, severally and not jointly, to purchase from the Company Selling Stockholders the respective number of Underwritten Shares set forth opposite such Underwriter’s name in Schedule 1 hereto at a price per share of $987.50 24.125 (the “Purchase Price”). The Selling Stockholders, as and to the extent indicated in Schedule 2 hereto, agree, severally and not jointly, to sell the Option Shares to the several Underwriters as provided in this Agreement, and the Underwriters, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, shall have the option to purchase, severally and not jointly, from the Selling Stockholders the Option Shares at the Purchase Price. Any election to purchase Option Shares shall be made in proportion to the maximum number of Option Shares to be sold by each Selling Stockholder as set forth in Schedule 2 hereto. The Underwriters may exercise the option to purchase the Option Shares at any time in whole, or in part on no more than two occasions, on or before the thirtieth day following the date of this Agreement, by written notice from the Representatives to the Company and the Selling Stockholders as indicated in Section 17(b) hereof. Such notice shall set forth the aggregate number of Option Shares as to which the option is being exercised and the date and time when the Option Shares are to be delivered and paid for which may be the same date and time as the Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date nor later than the tenth full business day (as hereinafter defined) after the date of such notice (unless such time and date are postponed in accordance with the provisions of Section 12 hereof). Any such notice shall be given at least two business days prior to the date and time of delivery specified therein.
(b) The Company understands and the Selling Stockholders understand that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness of this Agreement Execution Time as in their the judgment of the Representatives is advisable, and initially to offer the Shares on the terms set forth in the Final Prospectus. The Company acknowledges and agrees the Selling Stockholders acknowledge and agree that the Underwriters may offer and sell Shares to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Shares purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Shares shall be made by wire transfer in immediately available funds to the account accounts specified by the Company Custodian to the Underwriters Representatives in the case of the Underwritten Shares, at the offices of Xxxxxx Xxxxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 9:00 A.M., New York City timeoffices of Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP at 10:00 A.M. New York City time on November 19, on August 25, 20162007, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Company Representatives and the Underwriters Selling Stockholders may agree upon in writingwriting or, in the case of the Option Shares, on the date and at the time and place specified by the Representatives in the written notice of the Underwriters’ election to purchase such Option Shares. The time and date of such payment for the Underwritten Shares is referred to herein as the “Closing Date” and the time and date for such payment for the Option Shares, if other than the Closing Date, is herein referred to as the “Additional Closing Date”. Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as the case may be, shall be made against delivery to the Representatives for the respective accounts of the several Underwriters of the Shares to be purchased on such date in definitive form registered in such names and in such denominations as the Representatives shall request in writing not later than two full business days prior to the Closing Date or the Additional Closing Date, as the case may be, with any transfer taxes payable in connection with the sale of such the Shares duly paid by the CompanySelling Stockholders. The Shares shall to be in global formpurchased on the Closing Date or the Additional Closing Date, as specified by the Representativescase may be, and shall be delivered by or on behalf of the Representatives through the facilities of The Depository Trust Company (“DTC”), for the respective accounts of the several Underwriters, against payment by or on behalf of such Underwriter of the purchase price therefore by wire transfer of federal (same-day) unless funds to the accounts specified by the Selling Stockholders to the Representatives shall otherwise instruct. The Shares shall be registered in such names and such denominations as the Representatives shall request in writing not later than 1:00 P.M., New York City time, on the at least two full business day days prior to the Closing Date or the Additional Closing Date, as the case may be. The Selling Stockholders will cause any certificate(s) representing the Shares to be made available for checking and packaging at least 24 hours prior to the Closing Date or the Additional Closing Date, as the case may be, with respect thereto at the offices of DTC or its designated custodian.
(d) Each of the Company and the Selling Stockholders acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Selling Stockholders with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, any of the Selling Stockholders or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company, any of the Selling Stockholders or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Selling Stockholders shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company or the Selling Stockholders with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company or the Selling Stockholders.
Appears in 1 contract
Purchase of the Shares by the Underwriters. (a) On the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, each of the Forward Seller (with respect to the Borrowed Underwritten Shares) and the Company (with respect to any Company Top-Up Underwritten Shares), severally and not jointly, agrees to sell to the several Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Forward Seller (with respect to the Borrowed Underwritten Shares) and the Company (with respect to any Company Top-Up Underwritten Shares) the respective number of Underwritten Shares set forth opposite such Underwriter’s name in Schedule 1 hereto at a price per share (the “Purchase Price”) of $48.00875.
(b) On the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, the Underwriters shall have the option to purchase pursuant to clause (i) or clause (ii) below, as applicable, solely for the purpose of covering overallotments made in connection with the offering of the Underwritten Shares, severally and not jointly, the Option Shares, at the Purchase Price less an amount per share equal to any dividends or distributions declared by the Company and payable on the Underwritten Shares but not payable on the Option Shares (the “Option Purchase Price”). The Underwriters may exercise the option to purchase Option Shares at any time in whole, or from time to time in part, on or before the thirtieth day following the date of the Prospectus, by written notice from the Representatives to the Company. Such notice shall set forth the aggregate number of Option Shares as to which the option is being exercised and the date and time when the Option Shares are to be delivered and paid for, which may be the same date and time as the Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date or later than the tenth full business day (as hereinafter defined) after the date of such notice (unless such time and date are postponed in accordance with the provisions of Section 12 hereof). Any such notice shall be given at least two business days prior to the date and time of delivery specified therein. Following delivery of an exercise notice:
(i) The Company may, in its sole discretion, within one business day after such notice is given, execute and deliver to the Forward Seller an additional letter agreement substantially in the form attached hereto as Schedule 2 between the Company and the Forward Purchaser (the “Additional Forward Sale Agreement”) providing for the forward sale by the Company, subject to the Company’s right to elect Cash Settlement or Net Share Settlement (as such terms are defined in such Additional Forward Sale Agreement), of a number of shares of Common Stock equal to the aggregate number of Option Shares being purchased by the Underwriters from the Forward Seller pursuant to the exercise of such option. Upon the Company’s execution and delivery to the Forward Seller of such Additional Forward Sale Agreement, the Forward Purchaser shall promptly execute and deliver such Additional Forward Sale Agreement to the Company, and upon such execution and delivery to the Company, on the basis of the representations, warranties and agreements contained herein, and subject to the conditions stated herein, the Forward Seller (or, in the case of any Company Top-Up Option Shares, the Company) hereby agrees to issue and sell the Shares to the several Underwriters as provided such number of Option Shares at the Option Purchase Price.
(ii) If the Company does not timely execute and deliver the Additional Forward Sale Agreement pursuant to clause (i) above, then on the basis of the representations, warranties and agreements contained in this Agreement, and subject to the terms and conditions stated herein, the Company hereby agrees to sell to the several Underwriters the aggregate number of Option Shares with respect to which the option is being exercised at the Option Purchase Price. On each UnderwriterAdditional Closing Date (as defined in Section 2(g) hereof), if any, each Underwriter agrees, severally and not jointly, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein agrees, severally and not jointlyherein, to purchase from the Company or the respective Forward Seller, as applicable, at the Option Purchase Price, the number of Option Shares that bears the same ratio to the aggregate number of Option Shares being purchased on such Additional Closing Date as the number of Underwritten Shares set forth opposite the name of such Underwriter’s name Underwriter in Schedule 1 hereto at a price per share (or such number increased as set forth in Section 12 hereof) bears to the aggregate number of $987.50 Underwritten Shares being purchased by the several Underwriters, subject, however, to such adjustments to eliminate any fractional Shares as the Representatives in their sole discretion shall make.
(c) If (i) any of the representations and warranties of the Company contained in Section 3 hereof or any certificate delivered by the Company pursuant hereto are not true and correct as of the Closing Date as if made as of the Closing Date, (ii) the Company has not performed all of the obligations required to be performed by it under this Agreement on or prior to the Closing Date, (iii) any of the conditions set forth in Section 7 hereof have not been satisfied on or prior to the Closing Date, (iv) this Agreement shall have been terminated pursuant to Section 11 hereof on or prior to the Closing Date, or (v) the Company has not delivered to the Forward Purchaser an opinion of counsel with respect to matters set forth in Section 3(a) of the 2002 ISDA Master Agreement, as published by the International Swaps and Derivatives Association, Inc. (the “Purchase Price2002 ISDA Master Agreement”), as they relate to the Forward Sale Agreement on or prior to the Closing Date (clauses (i) through (v), together, the “Conditions”), the Forward Seller, in its sole discretion, may elect not to borrow and deliver for sale to the Underwriters the Borrowed Underwritten Shares. In addition, in the event that (A) the Forward Seller or an affiliate thereof is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Underwritten Shares, or (B), in the Forward Purchaser’s commercially reasonable judgment, either it is impracticable to do so or the Forward Seller or its affiliate would incur a stock loan cost, excluding the federal funds rate component payable by the relevant stock lender to the Forward Seller or such affiliate (the “Stock Loan Fee”) of more than a rate equal to 200 basis points per annum to do so, then, in each case, the Forward Seller shall only be required to deliver for sale to the Underwriters on the Closing Date the aggregate number of shares of Common Stock that the Forward Seller or its affiliate is able to so borrow at or below such cost.
(bd) If the Company has entered into an Additional Forward Sale Agreement with the Forward Purchaser pursuant to Section 2(b)(i) hereof, and (i) any of the representations and warranties of the Company contained in Section 3 hereof or any certificate delivered pursuant hereto are not true and correct in all material respects as of the relevant Additional Closing Date, (ii) the Company has not performed all of the additional obligations required to be performed by it under this Agreement on or prior to the relevant Additional Closing Date, (iii) any of the conditions set forth in Section 7 hereof have not been satisfied on or prior to the relevant Additional Closing Date, (iv) this Agreement shall have been terminated pursuant to Section 11 hereof on or prior to the relevant Additional Closing Date, or (v) the Company has not delivered to the Forward Purchaser an opinion of counsel with respect to matters set forth in Section 3(a) of the 2002 ISDA Master Agreement, as they relate to the Additional Forward Sale Agreement on or prior to the relevant Additional Closing Date (clauses (i) through (v), together, the “Additional Conditions”), then the Forward Seller, in its sole discretion, may elect not to borrow and deliver for sale to the Underwriters on the relevant Additional Closing Date the Borrowed Option Shares. In addition, in the event that (A) the Forward Seller or an affiliate thereof is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Option Shares, or (B), in the Forward Purchaser’s commercially reasonable judgment, either it is impracticable to do so or the Forward Seller or its affiliate would incur a Stock Loan Fee of more than a rate equal to 200 basis points per annum to do so, then, in each case, the Forward Seller shall only be required to deliver for sale to the Underwriters on the relevant Additional Closing Date the aggregate number of shares of Common Stock that the Forward Seller or its affiliate is able to so borrow at or below such cost.
(e) If (i) the Forward Seller elects, pursuant to Section 2(c) hereof, not to borrow and deliver for sale to the Underwriters on the Closing Date the total number of Borrowed Underwritten Shares, or (ii) the Forward Purchaser has entered into an Additional Forward Sale Agreement with the Company pursuant to Section 2(b)(i) hereof and the Forward Seller elects, pursuant to Section 2(d) hereof, not to borrow and deliver for sale to the Underwriters on the relevant Additional Closing Date the total number of Borrowed Option Shares for such Additional Closing Date, the Forward Seller will use its commercially reasonable efforts to notify the Company no later than 5:00 p.m., New York City time, on the business day prior to the Closing Date or such Additional Closing Date, as the case may be.
(f) The Company understands that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness of this Agreement as in their the judgment of the Representatives is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any affiliate of an UnderwriterUnderwriter (a “Participating Affiliate”).
(cg) Payment for and delivery of the Shares shall be made by wire transfer in immediately available funds to the account specified to the Representatives by the Company Forward Seller (with respect to the Underwriters Borrowed Shares) or the Company (with respect to any Company Shares) in connection with a closing at the offices of Xxxxxx Xxxxxx Xxxxxx, Xxxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 LLP at 9:00 10:00 A.M., New York City time, on August 25March 4, 20162014, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Company Representatives, the Forward Seller and the Underwriters Company may agree upon in writingwriting or, in the case of the Option Shares, on the date and at the time and place specified by the Representatives in the written notice of the Underwriters’ election to purchase such Option Shares. The time and date of such payment for the Underwritten Shares is referred to herein as the “Closing Date”. ,” and the time and date for such payment for the Option Shares, if other than the Closing Date, is herein referred to as the “Additional Closing Date.” Payment for the Shares to be purchased on the Closing Date or any Additional Closing Date, as the case may be, shall be made against delivery to the Representatives for the respective accounts of the several Underwriters of the Shares by the Forward Seller (in the case of any Borrowed Shares) or the Company (in the case of any Company Shares) to be purchased on such date date, with any transfer taxes payable in connection with the sale of such any Company Shares duly paid by the Company. The Delivery of the Shares shall be in global form, as specified by the Representatives, and shall be delivered made through the facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct. The Any certificates for the Shares shall will be registered in such names made available for inspection and such denominations as packaging by the Representatives shall request in writing at the office of DTC or its designated custodian not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date or any Additional Closing Date, as the case may be.
(h) The Company acknowledges and agrees that the Underwriters, the Forward Purchaser and the Forward Seller are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, none of the Underwriters, the Forward Purchaser and the Forward Seller is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company 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 none of the Underwriters, the Forward Purchaser and the Forward Seller shall have any responsibility or liability to the Company with respect thereto. Any review by the Underwriters, the Forward Purchaser or the Forward Seller of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters, the Forward Purchaser or the Forward Seller, as the case may be, and shall not be on behalf of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Allete Inc)
Purchase of the Shares by the Underwriters. (a) The On the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, each of the Forward Seller (with respect to the Borrowed Shares) and the Company (with respect to any Company Top-Up Shares), severally and not jointly, agrees to issue sell to the several Underwriters, and sell each of the Underwriters agrees, severally and not jointly, to purchase from the Forward Seller (with respect to the Borrowed Shares) and the Company (with respect to any Company Top-Up Shares) the respective number of Underwritten Shares set forth opposite such Underwriter’s name in Schedule 1 hereto at a price per share (the “Purchase Price”) of $28.54125.
(b) In addition, the Company grants to the several Underwriters as provided in this Agreementthe option to purchase, and on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, the Underwriters shall have the option to purchase, severally and not jointly, the Option Shares at the Purchase Price less an amount per share equal to any dividends or distributions declared by the Company and payable on the Underwritten Shares but not payable on the Option Shares (the “Option Purchase Price”). The Underwriters may exercise the option to purchase Option Shares at any time in whole, or from time to time in part, on or before the thirtieth day following the date of the Prospectus, by written notice from the Representatives to the Company. Such notice shall set forth the aggregate number of Option Shares as to which the option is being exercised and the date and time when the Option Shares are to be delivered and paid for, which may be the same date and time as the Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date or later than the fifth full business day (as hereinafter defined) after the date of such notice (unless such time and date are postponed in accordance with the provisions of Section 11 hereof). Any such notice shall be given at least two business days prior to the date and time of delivery specified therein. On each UnderwriterAdditional Closing Date (as defined in Section 2(f) hereof), if any, each Underwriter agrees, severally and not jointly, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein agrees, severally and not jointlyherein, to purchase from the Company Company, at the respective Option Purchase Price, the number of Option Shares that bears the same ratio to the aggregate number of Option Shares being purchased on such Additional Closing Date as the number of Underwritten Shares set forth opposite the name of such Underwriter’s name Underwriter in Schedule 1 hereto at a price per share (or such number increased as set forth in Section 11 hereof) bears to the aggregate number of $987.50 Underwritten Shares being purchased by the several Underwriters, subject, however, to such adjustments to eliminate any fractional Shares as the Representatives in their sole discretion shall make.
(c) If (i) any of the representations and warranties of the Company contained in Section 3.A hereof or any certificate delivered by the Company pursuant hereto are not true and correct as of the Closing Date as if made as of the Closing Date, (ii) the Company has not performed all of the obligations required to be performed by it under this Agreement on or prior to the Closing Date, (iii) any of the conditions set forth in Section 6 hereof have not been satisfied on or prior to the Closing Date, (iv) this Agreement shall have been terminated pursuant to Section 10 hereof on or prior to the Closing Date, or (v) the Company has not delivered to the Forward Purchaser an opinion of counsel with respect to matters set forth in Section 3(a) of the 1992 ISDA Master Agreement (Multicurrency— Cross Border), as published by the International Swaps and Derivatives Association, Inc. (the “Purchase Price1992 ISDA Master Agreement”), on or prior to the Closing Date (clauses (i) through (v), together, the “Conditions”), the Forward Seller, in its sole discretion, may elect not to borrow and deliver for sale to the Underwriters the Borrowed Shares. In addition, in the event that, in the Forward Purchaser’s commercially reasonable judgment, (A) the Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Shares, or (B) the Forward Seller would incur a stock loan cost of more than a rate equal to 50 basis points per annum to do so, then, in each case, the Forward Seller shall only be required to deliver for sale to the Underwriters on the Closing Date the aggregate number of shares of Common Stock that the Forward Seller is able to so borrow at or below such cost.
(bd) If the Forward Seller elects, pursuant to Section 2(c) hereof, not to borrow and deliver for sale to the Underwriters on the Closing Date the total number of Borrowed Shares, the Forward Seller will use its commercially reasonable efforts to notify the Company no later than 5:00 p.m., New York City time, on the second business day prior to the Closing Date.
(e) The Company understands that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness of this Agreement as in their the judgment of the Representatives is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any affiliate of an UnderwriterUnderwriter (a “Participating Affiliate”).
(cf) Payment for and delivery of the Shares shall be made by wire transfer in immediately available funds to the account specified to the Representatives by the Company Forward Seller (with respect to the Underwriters Borrowed Shares) or the Company (with respect to any Company Shares) in connection with a closing at the offices of Xxxxxx Xxxxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 LLP at 9:00 10:00 A.M., New York City time, on August 25June 17, 20162013, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Company Representatives, the Forward Seller and the Underwriters Company may agree upon in writingwriting or, in the case of the Option Shares, on the date and at the time and place specified by the Representatives in the written notice of the Underwriters’ election to purchase such Option Shares. The time and date of such payment for the Underwritten Shares is referred to herein as the “Closing Date”, and the time and date for such payment for the Option Shares, if other than the Closing Date, is herein referred to as the “Additional Closing Date”. Payment for the Shares to be purchased on the Closing Date or any Additional Closing Date, as the case may be, shall be made against delivery to the Representatives for the respective accounts of the several Underwriters of the Shares to be purchased on such date or the relevant Additional Closing Date, as the case may be, with any transfer taxes payable in connection with the sale of such Shares duly paid by the CompanyCompany (with respect to any Company Shares). The Delivery of the Shares shall be in global form, as specified by the Representatives, and shall be delivered made through the facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct. The certificates for the Shares shall will be registered in such names made available for inspection and such denominations as packaging by the Representatives shall request in writing at the office of DTC or its designated custodian not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date or the relevant Additional Closing Date, as the case may be.
(g) The Company acknowledges and agrees that the Underwriters, the Forward Purchaser and the Forward Seller are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, none of the Underwriters, the Forward Purchaser and the Forward Seller is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company 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 none of the Underwriters, the Forward Purchaser and the Forward Seller shall have any responsibility or liability to the Company with respect thereto. Any review by the Underwriters, the Forward Purchaser or the Forward Seller of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters, the Forward Purchaser or the Forward Seller, as the case may be, and shall not be on behalf of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Portland General Electric Co /Or/)
Purchase of the Shares by the Underwriters. (a) The Company agrees to issue and sell the Underwritten Shares 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 herein, agrees, severally and not jointly, to purchase from the Company the respective number of Underwritten Shares set forth opposite such Underwriter’s name in Schedule 1 hereto at a price per share of $987.50 (the “Purchase Price”)) of $13.58.
(b) The Underwriters shall have the right to purchase, pursuant to clause (i) or clause (ii) below, as applicable, solely for the purpose of covering overallotments made in connection with the offering of the Underwritten Shares, severally and not jointly, up to the maximum number of Option Shares set forth opposite each Underwriter’s name in Schedule 1 hereto, at the Purchase Price less an amount per share equal to any dividends or distributions declared by the Company and payable on the Underwritten Shares during the period from, and including, the Closing Date (as hereinafter defined) to, but excluding, the relevant Additional Closing Date (as hereinafter defined) (such reduced price, the “Option Purchase Price”). The Underwriters may exercise the option to purchase Option Shares at any time in whole, or from time to time in part, on or before the thirtieth day following the date of the Prospectus, by written notice from the Representative to the Company. Such notice shall set forth the aggregate number of Option Shares as to which the option is being exercised and the date and time when the Option Shares are to be delivered and paid for, which may be the same date and time as the Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date or later than the tenth full business day (as hereinafter defined) after the date of such notice (unless such time and date are postponed in accordance with the provisions of Section 10 hereof). If any such notice is provided subsequent to the Closing Date, such notice shall be given at least two business days prior to the date and time of delivery specified therein. Following delivery of an exercise notice:
(i) Company may, in its sole discretion, within one business day after such notice is given, execute and deliver to the Forward Seller a letter agreement substantially in the form attached hereto as Exhibit B between the Company and the Forward Purchaser (a “Forward Sale Agreement”) providing for the forward sale by the Company, subject to the Company’s right to elect Cash Settlement or Net Share Settlement (as such terms are defined in the Forward Sale Agreement), of a number of shares of Common Stock equal to the aggregate number of Option Shares being purchased pursuant to the exercise of such option (less any such Option Shares sold by Company directly to Forward Seller). Upon the Company’s execution and delivery to the Forward Purchaser of the Forward Sale Agreement, the Forward Purchaser shall promptly execute and deliver the Forward Sale Agreement to the Company, and upon such execution and delivery to the Company, on the basis of the representations and warranties contained herein, and subject to the conditions stated herein and therein, each of the Forward Seller and the Company (with respect to any Company Top-Up Option Shares), severally and not jointly, hereby agrees to sell to the several Underwriters such Option Shares at the Option Purchase Price.
(ii) If the Company does not timely execute and deliver the Forward Sale Agreement pursuant to clause (i) above, then on the basis of the representations and warranties contained in this Agreement, and subject to the terms and conditions stated herein, the Company hereby agrees to sell to the several Underwriters the aggregate number of Option Shares with respect to which the option is being exercised at the Option Purchase Price. On the relevant Additional Closing Date, each Underwriter agrees, severally and not jointly, on the basis of the representations and warranties herein contained, and subject to the terms and conditions stated herein, to purchase from the Company or the Forward Seller, as applicable, at the Option Purchase Price, the number of Option Shares which bears the same ratio to the aggregate number of Option Shares being purchased as the number of Underwritten Shares set forth opposite the name of such Underwriter in Schedule 1 hereto (or such number increased as set forth in Section 10 hereof) bears to the aggregate number of Underwritten Shares being purchased from the Company by the several Underwriters, subject, however, to such adjustments to eliminate any fractional Shares as the Representative in its sole discretion shall make.
(c) If the Company has entered into a Forward Sale Agreement with the Forward Purchaser pursuant to Section 2(b)(i) hereof, and (i) any of the representations and warranties of the Company contained in Section 3.A hereof or any certificate delivered pursuant hereto is not true and correct in all material respects as of the relevant Additional Closing Date, (ii) the Company has not performed all of the additional obligations required to be performed by it under this Agreement on or prior to the relevant Additional Closing Date, (iii) any of the conditions set forth in Section 6 hereof has not been satisfied on or prior to the relevant Additional Closing Date, or (iv) any of the conditions to effectiveness set forth in Section 3 of the Forward Sale Agreement are not satisfied on or prior to the relevant Additional Closing Date (clauses (i) to (iv), together, the “Option Conditions”), then the Forward Seller, in its sole discretion, may elect not to borrow and deliver for sale to the Underwriters on the relevant Additional Closing Date the Borrowed Option Shares. In addition, in the event that (A) in the Forward Seller’s sole reasonable judgment, it is unable to borrow and deliver for sale under this Agreement all of the Borrowed Option Shares, or (B) in the Forward Seller’s sole reasonable judgment, it would incur a stock loan cost of in excess of a rate equal to 100 basis points per annum (the “Maximum Rate”) to borrow and deliver for sale under this Agreement all of the Borrowed Option Shares (unless the Company has agreed in writing on or prior to the relevant Additional Closing Date to reimburse Forward Seller for its costs in borrowing and delivering for sale such Borrowed Option Shares in excess of a rate equal to the Maximum Rate), then, in each case, the Forward Seller shall only be required to deliver for sale to the Underwriters on the relevant Additional Closing Date the aggregate number of shares of Common Stock that the Forward Seller is able to so borrow at or below such cost.
(d) If the Forward Purchaser has entered into a Forward Sale Agreement with the Company pursuant to Section 2(b)(i) hereof and the Forward Seller elects, pursuant to Section 2(c) hereof, not to borrow and deliver for sale to the Underwriters on the relevant Additional Closing Date the total number of Borrowed Option Shares for such Additional Closing Date, the Forward Seller will use its commercially reasonable efforts to notify the Company no later than 5:00 p.m., New York City time, on the first business day prior to the Closing Date or such Additional Closing Date, as the case may be.
(e) The Company understands that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness of this Agreement as in their the judgment of the Representative is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any affiliate of an Underwriter.
(cf) Payment for and delivery of the Shares shall be made by wire transfer in immediately available funds to the account specified by the Company (in the case of any Company Shares) or by the Forward Seller (in the case of any Borrowed Option Shares) to the Underwriters Representative, at the offices of Xxxxxx Xxxxxx Xxxxx Xxxx & Xxxxxxx llpXxxxxxxx LLP, 00 Xxxx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx XX 00000 at 9:00 10:00 A.M., New York City time, on August January 25, 20162011, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Company Representative and the Underwriters Company may agree upon in writingwriting or, in the case of the Option Shares, on the date and at the time and place specified by the Representative in the written notice of the Underwriters’ election to purchase such Option Shares. The time and date of such payment for the Underwritten Shares is referred to herein as the “Closing Date”, and the time and date for such payment for the Option Shares, if other than the Closing Date, is herein referred to as the “Additional Closing Date”. Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as the case may be, shall be made against delivery to the Representatives Representative for the respective accounts of the several Underwriters of the Shares to be purchased on such date the Closing Date or the Additional Closing Date, as the case may be, with any transfer taxes payable in connection with the sale of such Shares duly paid by the CompanyCompany (in the case of any Company Shares) or by the Forward Seller (in the case of any Borrowed Option Shares). The Company will deliver the Underwritten Shares shall be in global form, to or as specified instructed by the Representatives, and shall be delivered Representative for the accounts of the several Underwriters in a form reasonably acceptable to the Representative through the facilities of The Depository Trust Company (“DTC”) unless the Representatives Representative shall otherwise instructinstruct on the Closing Date. The Forward Seller (with respect to any Borrowed Option Shares) and the Company (with respect to any Company Option Shares and Company Top-Up Option Shares) will deliver the Option Shares to or as instructed by the Representative for the accounts of the several Underwriters in a form reasonably acceptable to the Representative through the facilities of DTC unless the Representative shall otherwise instruct on the relevant Additional Closing Date. The certificates for the Shares will be registered in such names made available for inspection and such denominations as packaging by the Representatives shall request in writing Representative at the office of DTC or its designated custodian not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date or the relevant Additional Closing Date, as the case may be.
(g) The Company acknowledges and agrees that the Underwriters, the Forward Purchaser and the Forward Seller are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, none of the Underwriters, the Forward Purchaser nor the Forward Seller is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company 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 the Underwriters, the Forward Purchaser and the Forward Seller shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters, the Forward Purchaser or the Forward Seller of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters, the Forward Purchaser or the Forward Seller, as the case may be, and shall not be on behalf of the Company.
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Purchase of the Shares by the Underwriters. (a) The Company agrees to issue and sell the Shares 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 herein, agrees, severally and not jointly, to purchase from the Company the respective number of Shares set forth opposite such Underwriter’s name in Schedule 1 hereto at a price per share of $987.50 (the “Purchase Price”)) of $4.8925.
(b) The Company understands that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness of this Agreement as in their the judgment of the Representative is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any affiliate of an Underwriter.
(c) Payment for and delivery of the Shares shall be made by wire transfer in immediately available funds to the account specified by the Company to the Underwriters Representative, at the offices of Xxxxxx Xxxxxx & Xxxxxxx llpProskauer Rose LLP, 00 Xxxx Eleven Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 00000, at 9:00 10:00 A.M., New York City time, on August 25May 16, 20162017, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Company Representative and the Underwriters Company may agree upon in writing. The time and date of such payment for the Shares is referred to herein as the “Closing Date”. .” Payment for the Shares to be purchased on the Closing Date shall be made against delivery to the Representatives Representative for the respective accounts of the several Underwriters of the Shares to be purchased on such date in definitive form registered in such names and in such denominations as the Representative shall request in writing not later than two full business days prior to the Closing Date, with any transfer taxes payable in connection with the sale of such Shares duly paid by the Company. The Delivery of the Shares shall be in global form, as specified by the Representatives, and shall be delivered made through the facilities of The Depository Trust Company (“DTC”) unless the Representatives Representative shall otherwise instruct.
(d) The Company acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representative nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Shares Company shall consult with its own advisors concerning such matters and shall be registered in such names responsible for making its own independent investigation and such denominations as appraisal of the Representatives transactions contemplated hereby, and the Underwriters shall request in writing not later than 1:00 P.M., New York City time, on the business day prior have no responsibility or liability to the Closing DateCompany with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company.
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Purchase of the Shares by the Underwriters. (a) The Company agrees to issue and sell 1,399,303 Shares, and the Selling Stockholder agrees to sell 50,000 Shares 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 herein, agrees, severally and not jointly, to purchase at a price per share (the “Purchase Price”) of $45.65 from the Company the respective number of Shares set forth opposite such Underwriter’s name in Schedule 1 hereto at a price per share and from the Selling Stockholder the respective number of $987.50 (the “Purchase Price”)Shares set forth opposite such Underwriter’s name in Schedule 1 hereto.
(ba) The Company understands and the Selling Stockholder understand that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness of this Agreement as in their the judgment of the Representatives is advisable, and initially to offer the Shares on the terms set forth in the ProspectusPricing Disclosure Package. The Company acknowledges and agrees the Selling Stockholder acknowledge and agree that the Underwriters may offer and sell Shares to or through any affiliate of an Underwriter.
(cb) Payment for and delivery of the Shares shall be made by wire transfer in immediately available funds to the account accounts specified by the Company and the Attorneys-in-Fact (as defined below) or any of them (with regard to payment to the Underwriters Selling Stockholder), to the Representatives in the case of the Shares, at the offices of Xxxxxx Xxxxxx Dxxxx Xxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Wxxxxxxx LLP at 9:00 10:00 A.M., New York City time, on August 25March 14, 20162019, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Company and the Underwriters Attorneys-in-Fact may agree upon in writing. The time and date of such payment for the Shares is referred to herein as the “Closing Date”. Payment for the Shares to be purchased on the Closing Date shall be made against delivery to the Representatives for the respective accounts of the several Underwriters of the Shares to be purchased on such date with any transfer taxes payable in connection with the sale of such Shares duly paid by the CompanyCompany and the Selling Stockholder, as applicable. The Delivery of the Shares shall be in global form, as specified by the Representatives, and shall be delivered made through the facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct. The Shares shall be registered delivered to the Underwriters, through the facilities of DTC, in book-entry form in such names and in such denominations as the Representatives Underwriters shall request in writing not specify no later than 1:00 P.M., New York City time, on the business day prior second Business Day preceding the time at which such payment and delivery is made.
(c) Each of the Company and the Selling Stockholder acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Closing DateCompany and the Selling Stockholder with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Selling Stockholder or any other person. Additionally, neither the Representatives nor any other Underwriters are advising the Company, the Selling Stockholder or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Selling Stockholder shall consult with their own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company or the Selling Stockholder with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company or the Selling Stockholder.
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