Research Analyst Independence. The Company and the Selling Stockholder acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder hereby waive and release, to the fullest extent permitted by law, any claims that they may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between the Company, the Selling Stockholder and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).
Appears in 2 contracts
Samples: Underwriting Agreement (Crouse Lawrence D), Underwriting Agreement (Heartland Express Inc)
Research Analyst Independence. The Each of the Company and the Selling Stockholder acknowledge Western Gas Parties acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, Company and the value of the Common Stock Western Gas Parties and/or the offering that differ from the views of their respective investment banking divisions. The Each of the Company and the Selling Stockholder Western Gas Parties hereby waive waives and releasereleases, to the fullest extent permitted by law, any claims that they the Company or the Western Gas Parties may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder Western Gas Parties by any Underwriter’s such Underwriters’ investment banking divisiondivisions. The Each of the Company and the Selling Stockholder acknowledge Western Gas Parties acknowledges that each of the Underwriters is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Terms Agreement. Please confirm ANNEX A TO UNDERWRITING AGREEMENT This Annex A is incorporated into that certain Underwriting Agreement, dated June 4, 2015, among Anadarko Petroleum Corporation, Western Gas Equity Partners, LP, Western Gas Equity Holdings, LLC and X.X. Xxxxxx Securities LLC, as representative of the foregoing correctly sets forth several underwriters named therein. Unless otherwise defined herein, capitalized terms used herein have the agreement between meanings ascribed to them in the CompanyUnderwriting Agreement. Western Gas Holdings, LLC, a Delaware limited liability company (“XXX GP”), Western Gas Partners, LP, a Delaware limited partnership (“XXX”) and WES’s direct and indirect subsidiaries listed on Schedule A hereto (the Selling Stockholder “Operating Subsidiaries”) are collectively referred to herein as the “XXX Entities.” The Western Gas Parties and the several Underwriters. Very truly yoursXXX Entities are collectively referred to as the “Partnership Entities.” Each of the Western Gas Parties, HEARTLAND EXPRESSjointly and severally, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance represents and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED warrants to you, and to each Underwriter named in a Terms Agreement as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933thereof, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).follows:
Appears in 2 contracts
Samples: Underwriting Agreement (Western Gas Equity Partners, LP), Underwriting Agreement (Anadarko Petroleum Corp)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSLEAP THERAPEUTICS, INC. /s/ Xxxx Xxxxxxxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice Xxxxxxxxx President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC Name: Xx Xxxxxx Title: Managing Director LADENBURG XXXXXXXX & CO. INC. By: /s/ Xxxxx Xxxxxx Authorized Representative X. Xxxxxx, XX. Name: Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETSX. Xxxxxx, a division of BB&T SECURITIES, LLC ByXX. Title: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Number Name Number ofFirm Firm Shares XxxxxxXxxxxxx Xxxxx & Associates, Inc. 1,120,000 Ladenburg Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Co. Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 746,667 Total: 3,250,000 Schedule 1,866,667 SCHEDULE II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Price per share to the public: $7.50 Firm Shares: 3,250,000 Number of 1,866,667 Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. 280,000 SCHEDULE III Persons Subject to Lock-Up up Xxxxxxxxxxx Xxxxxxxxx Xxxxxxx Xxxx Xxxxxxxxx Xxxxxx Xxxxx Xxxxxxxxx Xxxxxx Xxxxx Xxxxxxx Xx Xxxx Xxxxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx HealthCare Ventures VIII, L.P. HealthCare Strategic Fund, L.P. EXHIBIT A Form of Lock-up Agreement XXXXXXMarch , 2018 LEAP THERAPEUTICS, INC. 00 Xxxxxxxxx Xxxxxx, Xxxxx X0-0 Xxxxxxxxx, XX 00000 XXXXXXX XXXXX & ASSOCIATES, INC. LADENBURG XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX CO. INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters c/o Raymond Xxxxx & Associates, Inc. 000 Xxxxxxxx Xxxxxxx Xx. Xxxxxxxxxx, XX 00000 x/x Xxxxxx, Xxxxxxxxx Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, Co. Inc. 000 Xxxx Xxxxxx 00xx Xxxxx XxxxxxxxxXxx Xxxx, Xxxxxxxx Xxx Xxxx 00000 Re: Heartland ExpressLeap Therapeutics, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, ) - Restriction on Stock Sales Dear Sirs: This letter is delivered to you pursuant to the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)) to be entered into by the Company, on behalf as issuer, and Xxxxxxx Xxxxx & Associates, Inc. and Ladenburg Xxxxxxxx & Co. Inc., as the representatives (the “Representatives”) of the several Underwriters named in Schedule I to such agreement certain underwriters (collectively, the “Underwriters”)) to be named therein. Upon the terms and subject to the conditions of the Underwriting Agreement, with the Underwriters intend to effect a public offering of Common Stock, par value $0.001 per share, of the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling StockholderShares”), providing for a public offering as described in and contemplated by the Underwriting Agreement and the registration statement of the Company on Form S-3, File No. 333-223419 (the “Public Registration Statement”), as filed with the Securities and Exchange Commission on March 2, 2018 (the “Offering”) ). The undersigned recognizes that it is in the best financial interests of Shares the undersigned, as an officer or director, or an owner of stock, options, warrants or other securities of the Company (the “Company Securities”), that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or may be, subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as defined in an inducement to the Underwriters to execute the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby acknowledges and agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not (i) offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale purchase or otherwise dispose of (collectively, a “Disposition”) any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common StockCompany Securities, or any securities convertible intointo or exercisable or exchangeable for, exchangeable for or any rights to purchase or otherwise acquire, any Company Securities held by the undersigned or acquired by the undersigned after the date hereof, or that represent the right may be deemed to receive shares of Common Stock, whether now be beneficially owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively collectively, the “Undersigned's Lock-Up Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession pursuant to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, Rules and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 Regulations promulgated under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), for a period commencing on the date hereof and no ending 60 days after the date of the Company’s Prospectus first filed in connection with the Offering pursuant to Rule 424(b) under the Act, inclusive (the “Lock-Up Period”), without the prior written consent of the Representatives or (ii) exercise or seek to exercise or effectuate in any manner at any time during the Lock-Up Period any rights of any nature that the undersigned has or may have hereafter to require the Company to register under the Act the undersigned’s sale, transfer or other public filing disposition of any of the Lock-Up Shares or report regarding such transfer shall be required other securities of the Company held by the undersigned, or shall be voluntarily made to otherwise participate as a selling securityholder in any manner in any registration effected by the Company under the Act, including under the Registration Statement, during the Lock-Up Period. For purposes The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging, collar (whether or not for any consideration) or other transaction that is designed to or reasonably expected to lead or result in a Disposition of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, even if such Lock-Up Shares would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include any short sale or any purchase, sale or grant of any right (including any put or call option or reversal or cancellation thereof) with respect to any Lock-Up Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Lock-Up Shares. Notwithstanding the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds agreement not to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, make any Disposition during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect you have agreed that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).foregoing restrictions shall not apply to:
Appears in 2 contracts
Samples: Underwriting Agreement, Underwriting Agreement (Leap Therapeutics, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, BYRNA TECHNOLOGIES INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice ______________________ President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDERBy: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee ______________________ Attorney-in-Fact CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx ________________ Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Firm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule ___________ SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number Prospectus EXHIBIT A Form of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up up Agreement XXXXXX_______, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX 2021 BYRNA TECHNOLOGIES INC. 100 Xxxxx Fargo SecuritiesXxxx, LLC BB&T Capital MarketsSuite 115 Andover, a division of BB&T SecuritiesMA 01810 RXXXXXX JXXXX & ASSOCIATES, LLC INC. As Representatives Representative of the Several Underwriters xc/x Xxxxxx, Xxxxxxxx o Raymond Jxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland ExpressAssociates, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned800 Xxxxxxxx Xxxxxxx Xx. Xxxxxxxxxx, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).XX 00000
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering Offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by applicable law, any claims that they the Company may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s such Underwriters’ investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that [Signature Pages Follow] If the foregoing Underwriting Agreement correctly sets forth the agreement between understanding among the Company, the Selling Stockholder Company and the several Underwriters, please so indicate in the space provided below for the purpose, whereupon this letter and your acceptance shall constitute a binding agreement among the Company and the Underwriters. Very truly yours, HEARTLAND EXPRESS, HOLLYFRONTIER CORPORATION By: /s/ Xxxxxxx X. Xxxx Name: Xxxxxxx X. Xxxx Title: Vice President and Treasurer Confirmed and accepted as of the date first above written: By: CITIGROUP GLOBAL MARKETS INC. as a Representative of the several Underwriters By: /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDERBy: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED as a Representative of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX Xxxxxx Name: Xxxxx Xxxxxx Title: Managing Director By: MITSUBISHI UFJ SECURITIES (USA), INC. as a Representative of the several Underwriters By: /s/ Xxxxxxx Xxxxx Name: Xxxxxxx Xxxxx Title: Managing Director By: XXXXX FARGO SECURITIES, LLC as a Representative of the several Underwriters By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC ByName: /s/ Xxxxx Xxxxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Title: Director BB&T CAPITAL MARKETS, a division ANNEX A List of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II each Issuer General Use Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Prospectus
Appears in 1 contract
Samples: HollyFrontier Corp
Research Analyst Independence. The Company and the Selling Stockholder Partnership Parties acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the CompanyPartnership, the value of the Common Stock Units and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Partnership Parties hereby waive and release, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder Partnership Parties by any Underwriter’s investment banking division. The Company and the Selling Stockholder Partnership Parties acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Xxxxxxx Parties and the several Underwriters. Very truly yours, HEARTLAND EXPRESSXXXXXXX ROYALTY PARTNERS, INC. /s/ Xxxx X. LP By: Xxxxxxx Royalty GP, LLC, its general partner Name: Xxxx X. Xxxxxx Xxxxxxx Title: Chief Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx XXXXXXX ROYALTY GP, LLC Name: Xxxxxxxx X. Xxxxxx Xxxxxxx Title: Trustee Chief Executive Officer XXXXXXX OPERATING COMPANY, LLC Name: Xxxxxx Xxxxxxx Title: Chief Executive Officer XXXXXXX INTERMEDIATE GP, LLC Name: Xxxxxx Xxxxxxx Title: Chief Executive Officer XXXXXXX INTERMEDIATE HOLDINGS, LLC Name: Xxxxxx Xxxxxxx Title: Chief Executive Officer XXXXXXX XX HOLDINGS, LLC Name: Xxxxxx Xxxxxxx Title: Chief Executive Officer BGT INVESTMENTS LLC Name: Title: DOUBLE EAGLE INTERESTS, LLC Name: Title: XXXXXXXX ROYALTIES, LLC Name: Title: CONFIRMED as of the date first above mentioned, on behalf for themselves and as Representatives of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXX XXXXX & ASSOCIATES, INC. By: Authorized Representative RBC CAPITAL MARKETS, LLC By: Authorized Representative XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC- 42 - SCHEDULE I Number of Name Firm Units Xxxxxxx Xxxxx & Associates, Inc. RBC Capital Markets, LLC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Xxxxxxxxxx Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Inc. Total: 3,250,000 Schedule SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Prospectus [Insert list of “road show” materials.] SCHEDULE III Persons Subject to Lock-Up [To come.] SCHEDULE IV Pricing Information Annex Number of Firm SharesUnits: 3,250,000 Number of Additional Shares: 487,500 [ ] Public Offering Price: $23.75 per share [ ] SCHEDULE V Partnership Entities Domestic Foreign Qualified Percentage Owned Xxxxxxx Royalty Partners, LP Delaware Xxxxxxx Royalty GP, LLC Delaware Xxxxxxx Operating Company, LLC Delaware Partnership Subsidiaries Xxxxxxx Royalty Holdings, LLC Delaware 100.0% Xxxxxxx Intermediate Holdings, LLC Delaware 100.0% Xxxxxxx Intermediate GP, LLC Delaware 100.0% Contributed Entities Xxxxxxxxxxx, X.X. Texas 100.0% OGM Partners I Texas 50.0% Oakwood Minerals I, L.P. Texas 92.572456% RCPTX, Ltd. Texas 83.834286% Rivercrest Royalties, LLC Delaware 100.0% Rochester Minerals, L.P. Texas 100.0% SCHEDULE VI Written Testing-the-Waters Communications [Insert list of Common Stock Exhibit written “testing-the-waters” materials.] EXHIBIT A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Form of Lock-Up Agreement [ ], 2017 XXXXXXX ROYALTY PARTNERS, LP 000 Xxxxxx Xxxxxx, Suite 810 Fort Worth, Texas 76102 XXXXXXX XXXXX & ASSOCIATES, INC. RBC CAPITAL MARKETS, LLC XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters xc/x Xxxxxxo Raymond Xxxxx & Associates, Inc. 000 Xxxxxxxx & CompanyXxxxxxx Xx. Xxxxxxxxxx, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx XX 00000 Re: Heartland ExpressXxxxxxx Royalty Partners, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation LP (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “RepresentativesPartnership”) propose - Restriction on Common Unit Sales Dear Sirs: This letter is delivered to enter into an you pursuant to the Underwriting Agreement (the “Underwriting Agreement”)) to be entered into by Xxxxxxx Royalty Partners, on behalf of the several Underwriters named in Schedule I to such agreement LP, a Delaware limited partnership (collectively, the “UnderwritersPartnership”), with the Company as issuer, Xxxxxxx Royalty GP, LLC, a Delaware limited liability company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 general partner of the Partnership (the “Selling StockholderGeneral Partner”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer Xxxxxxx Operating Company, LLC, Xxxxxxx Intermediate GP, LLC, Xxxxxxx Intermediate Holdings, LLC, Xxxxxxx XX Holdings, LLC, BGT Investments LLC, Double Eagle Interests, LLC and sell the SharesXxxxxxxx Royalties, LLC and of other good Xxxxxxx Xxxxx & Associates, Inc., RBC Capital Markets, LLC and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, IncorporatedIncorporated as the representatives (the “Representatives”) of certain underwriters (the “Underwriters”) named therein. Upon the terms and subject to the conditions of the Underwriting Agreement, the Underwriters intend to effect a public offering of common units representing limited partners interests of the Partnership (the “Units”), as described in and contemplated by the registration statement of the Partnership on Form S-1, File No. 333-215458 (the “Registration Statement”), as filed with the Securities and Exchange Commission on [ ], 2017 (the “Offering”). The undersigned recognizes that it is in the best financial interests of the undersigned, as an officer or director or the General Partner, or an owner of Common Units, options, warrants or other securities of the Partnership (the “Partnership Securities”), that the Partnership complete the proposed Offering. The undersigned further recognizes that the Partnership Securities held by the undersigned are, or may be, subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters that the Partnership Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as an inducement to the Underwriters to execute the Underwriting Agreement, the undersigned hereby acknowledges and agrees that the undersigned will not (i) offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale purchase or otherwise dispose of (collectively, a “Disposition”) any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common StockPartnership Securities, or any securities convertible intointo or exercisable or exchangeable for, exchangeable for or any rights to purchase or otherwise acquire, any Partnership Securities held by the undersigned or acquired by the undersigned after the date hereof, or that represent the right may be deemed to receive shares of Common Stock, whether now be beneficially owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect collectively, the “Lock-Up Units”), pursuant to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 promulgated under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), for a period commencing on the date hereof and no ending 180 days after the date of the Partnership’s prospectus first filed pursuant to Rule 424(b) under the Act, inclusive (the “Lock-Up Period”), without the prior written consent of the Representatives or (ii) exercise or seek to exercise or effectuate in any manner any rights of any nature that the undersigned has or may have hereafter to require the Partnership to register under the Act the undersigned’s sale, transfer or other public filing disposition of any of the Lock-Up Units or report regarding such transfer shall be required other securities of the Partnership held by the undersigned, or shall be voluntarily made to otherwise participate as a selling securityholder in any manner in any registration effected by the Partnership under the Act, including under the Registration Statement, during the Lock-Up Period. For purposes The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging, collar (whether or not for any consideration) or other transaction that is designed to or reasonably expected to lead or result in a Disposition of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of Units during the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement Period, even if such Lock-Up Units would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include any short sale or any purchase, sale or grant of any right (including any put or call option or reversal or cancellation thereof) with respect to any Lock-Up Units or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Lock-Up Units. Notwithstanding the Undersigned’s Shares will agreement not be, pledged, hypothecated, or granted as collateral or security for to make any obligation. [In addition, notwithstanding the foregoing, Disposition during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect agrees that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).foregoing restrictions shall not apply to:
Appears in 1 contract
Samples: Underwriting Agreement (Kimbell Royalty Partners, LP)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge company acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, INC. FEDERATED NATIONAL HOLDING COMPANY /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice Mxxxxxx Xxxxx President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Mxxx Xxxxxxxx Authorized Representative XXXXX FARGO SECURITIESSCHEDULE I Number Name Firm Shares Rxxxxxx Jxxxx & Associates, Inc. 1,934,884 Jxxxxx Mxxxxxxxxx Xxxxx LLC By483,721 2,418,605 Total: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETSSCHEDULE II Issuer Free Writing Prospectus Free Writing Prospectus filed November 8, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx 2013 SCHEDULE III Persons Subject to Lock-up Mxxxxxx X. Xxxxx Authorized Representative Pxxxx X. Prygelski Bxxxx X. Xxxxxxx Rxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & CompanyXx. Cxxx Xxxx Cxxxxxx X. Xxxx, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division Xx. Jxxxxxx X. Xxxxxxxxx Lxxxx Xxxxxx SCHEDULE IV Form of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number Company Counsel Opinion EXHIBIT A Form of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up up Agreement XXXXXX_______, XXXXXXXX 2013 FEDERATED NATIONAL HOLDING COMPANY 10000 X.X. 00xx Xxxxxx Xxxxx 000 Xxxxxxx, Xxxxxxx 00000 RXXXXXX JXXXX & COMPANYASSOCIATES, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives Representative of the Several Underwriters xc/x Xxxxxxo Raymond Jxxxx & Associates, Inc. 800 Xxxxxxxx & CompanyXxxxxxx Xx. Xxxxxxxxxx, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx XX 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation Federated National Holding Company (the “"Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, ) - Restriction on Stock Sales Dear Sirs: This letter is delivered to you pursuant to the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)) to be entered into by the Company, on behalf as issuer, and Rxxxxxx Jxxxx & Associates, Inc., the representative (the “Representative”) of the several Underwriters named in Schedule I to such agreement certain underwriters (collectively, the “Underwriters”)) to be named therein. Upon the terms and subject to the conditions of the Underwriting Agreement, with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for Underwriters intend to effect a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share share, of the Company (the “Common StockShares”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly as described in and contemplated by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations registration statement of the Securities and Exchange Commission (collectively the “Undersigned's Shares”)Company on Form S-3, File No. The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock333-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended 191289 (the “Securities ActRegistration Statement”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported as filed with the Securities and Exchange Commission on September 20, 2013 (the “SECOffering”) on Form 4 ). The undersigned recognizes that it is in accordance with Section 16 the best financial interests of the Securities Exchange Act of 1934undersigned, as amended an officer or director, or an owner of stock, options, warrants or other securities of the Company (the “Exchange ActCompany Securities”), and no other public filing that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not may be, pledgedsubject to certain restrictions on transferability, hypothecated, or granted as collateral or security for any obligationincluding those imposed by United States federal securities laws. [In addition, notwithstanding the foregoing, during the Lock-Up PeriodNotwithstanding these restrictions, the undersigned may sell or otherwise dispose of has agreed to enter into this letter agreement to further assure the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect Underwriters that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting Company Securities of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mothernow held or hereafter acquired, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in will not enter the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii)public market at a time that might impair the underwriting effort.
Appears in 1 contract
Samples: Underwriting Agreement (Federated National Holding Co)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, INC. CAROLINA FINANCIAL CORPORATION /s/ Xxxx Jxxxxx X. Xxxxxxx Name: Xxxx Jxxxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Jxxxxx Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Number of Name Number ofFirm Firm Shares XxxxxxRxxxxxx Jxxxx & Associates, Xxxxxxxx Inc. 942,857 Kxxxx, Bxxxxxxx & CompanyWxxxx, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 471,429 Sxxxxxxx Inc. 157,143 Total: 3,250,000 Schedule 1,571,429 SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Prospectus None. SCHEDULE III Persons Subject to Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).up
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s such Underwriters’ investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that If the foregoing correctly sets forth is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the agreement between the Company, the Selling Stockholder and the several Underwritersspace provided below. Very truly yours, HEARTLAND EXPRESSATP OIL & GAS CORPORATION By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: President Accepted: June 11, 2009 X.X. XXXXXX SECURITIES INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance For itself and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named listed in Schedule I 1 hereto. XXXXXX, XXXXXXXX By: /s/ Xxx Xxxxxxx-Xxxxx Authorized Signatory X. X. XXXXXX & COMPANY, INC. By: /s/ Xxxxxxxxx X. Xxxxxxx Authorized Signatory CANACCORD XXXXX INC. By: /s/ Xxxxxxxxx X. Xxxxxx Authorized Signatory FIG PARTNERS, LLC By: /s/ Xxxxxxxx Xxxxxxx Authorized Signatory GLOBAL HUNTER SECURITIES, LLC By: /s/ Xxxxxx X. Xxxxxxx, XX Authorized Signatory XXXXXX XXXX INCORPORATED By: /s/ Xxxxx Xxxx Xxxxxxx Authorized Representative XXXXXXXX Signatory NATIXIS BLEICHROEDER INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESSignatory XXXXXXXXX CAPITAL PARTNERS, LLC LLC. By: /s/ Xxxx Xxxxxxxxxxx Authorized Signatory SMH CAPITAL, INC. By: /s/ Xxxxx Xxxxxx X. Mockenhoupt Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T Signatory XXXXXXXXXX SECURITIES, LLC INC. By: /s/ Xxxxxxxxxxx Xxxxxxx Authorized Signatory Schedule 1 Underwriter Number of Shares X.X. Xxxxxx Securities Inc. 5,468,748 SMH Capital, Inc. 557,813 X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx Xxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 557,813 Xxxxxxxxx Capital Partners, LLC. 557,813 Canaccord Xxxxx Fargo Inc. 284,375 Global Hunter Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T 284,375 Natixis Bleichroeder Inc. 284,375 Xxxxxx Xxxx Incorporated 284,375 Xxxxxxxxxx Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities284,375 FIG Partners, LLC BB&T Capital Markets, a division 185,938 Total 8,750,000 Annex A-1 [Form of BB&T Securities, LLC As Representatives Opinion of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing Counsel for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).]
Appears in 1 contract
Samples: Atp Oil & Gas Corp
Research Analyst Independence. The Company and the Selling Stockholder Operating Partnership acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Series A Preferred Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Operating Partnership hereby waive and release, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the Selling Stockholder Operating Partnership by any Underwriter’s investment banking division. The Company and the Selling Stockholder Operating Partnership acknowledge that each of the Underwriters is a full full-service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [ Signature page follows .] Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Operating Partnership, the Manager and the several Underwriters. Very truly yours, HEARTLAND EXPRESSNEXPOINT REAL ESTATE FINANCE, INC. By: /s/ Xxxx X. Xxxxxxx Xxxxx Xxxxx Name: Xxxx X. Xxxxxxx Xxxxx Xxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDEROfficer, Executive VP-Finance, Secretary and Treasurer NEXPOINT REAL ESTATE FINANCE OPERATING PARTNERSHIP, L.P. By: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 NexPoint Real Estate Finance Operating Partnership GP, LLC By: /s/ Xxxxxxxx X. Xxxxxx Xxxxx Xxxxx Name: Xxxxxxxx X. Xxxxxx Xxxxx Xxxxx Title: Trustee Chief Financial Officer, Executive VP-Finance, Secretary and Treasurer NEXPOINT REAL ESTATE ADVISORS VII, L.P. By: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Chief Financial Officer, Executive VP-Finance, Secretary and Treasurer Signature Page to Underwriting Agreement of NexPoint Real Estate Finance, Inc. CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Jozsi Popper Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division Signature Page to Underwriting Agreement of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressNexPoint Real Estate Finance, Inc. LockANNEX A Written Testing-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lockthe-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Waters Communications
Appears in 1 contract
Samples: Underwriting Agreement (NexPoint Real Estate Finance, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder Operating Partnership acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Series A Preferred Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Operating Partnership hereby waive and release, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the Selling Stockholder Operating Partnership by any Underwriter’s investment banking division. The Company and the Selling Stockholder Operating Partnership acknowledge that each of the Underwriters is a full full-service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature page follows.] Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Operating Partnership, the Manager and the several Underwriters. Very truly yours, HEARTLAND EXPRESSNEXPOINT REAL ESTATE FINANCE, INC. /s/ Xxxx X. Xxxxxxx By: Name: Xxxx X. Xxxxxxx Title: Executive Vice President of NEXPOINT REAL ESTATE FINANCE OPERATING PARTNERSHIP, L.P. By: NexPoint Real Estate Finance and Chief Financial Officer SELLING STOCKHOLDEROperating Partnership GP, LLC By: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee NEXPOINT REAL ESTATE ADVISORS VII, L.P. By: Name: Title: Signature Page to Underwriting Agreement of NexPoint Real Estate Finance, Inc. CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESSignature Page to Underwriting Agreement of NexPoint Real Estate Finance, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule Inc. ANNEX A Written Testing-the-Waters Communications SCHEDULE I Name Number ofFirm of Firm Shares XxxxxxXxxxxxx Xxxxx & Associates, Inc. [•] Xxxxx, Xxxxxxxx & CompanyXxxxx, Inc. [•] Xxxxxx X. Xxxxx & Co Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 [•] Total: 3,250,000 Schedule [•] SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Prospectus Issuer Free Writing Prospectus Filed Pursuant to Rule 433 Registration No. 333-[•] Dated [PRICING DATE], 2020 NEXPOINT REAL ESTATE FINANCE, INC. Pricing Information Number of Firm SharesTerm Sheet [•]% Series A Cumulative Redeemable Preferred Stock Issuer: 3,250,000 Number of NexPoint Real Estate Finance, Inc. Security: [•]% Series A Cumulative Redeemable Preferred Stock Size: [FIRM SHARES] shares Underwriters’ Option to Purchase Additional Shares: 487,500 [OPTION SHARES] shares Trade Date: [•], 2020 Settlement Date:* [CLOSING DATE], 2020 (T+5) Maturity: Perpetual (unless redeemed by the Issuer on or after [•], 2025 or pursuant to its special optional redemption right, repurchased by the Issuer in the open market or converted by an investor in connection with a Change of Control) Public Offering Price: $23.75 25.00 liquidation preference per share; $[•] total Underwriting Discount and Commissions: $[•] per share; $[•] total ($[•] if the underwriters exercise their option to purchase additional shares in full) Net Proceeds (before expenses): $[•] ($[•] if the underwriters exercise their option to purchase additional shares in full) Dividend Rate: [•]% per annum (or $[•] per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”per annum), accruing from, but excluding, [•], 2020 Dividend Payment Dates: On or one about the 25th day of its subsidiarieseach January, understands that XxxxxxApril, Xxxxxxxx & CompanyJuly and October, Incorporatedcommencing on [•], Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement)2020. In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during The first dividend payment will cover the period beginning on the date hereof from, but excluding, [•], 2020 to, but excluding, [•], 2020 Liquidation Preference: $25.00 per share, plus any accrued and ending on the date that is 90 days from unpaid dividends Optional Redemption: On and after [•], 2025, redeemable in whole or in part at a redemption price equal to $25.00 per share, plus any accrued and unpaid dividends (whether or not declared) to, but not including, the date of redemption. If the final prospectus relating to Issuer exercises its redemption right, by sending the Public Offering (the “Lock-Up Period”)required notice, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations some or all of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Series A Preferred Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting a Change of Control, holders of the undersigned’s restricted shares Series A Preferred Stock will not be permitted to exercise the conversion rights described below in respect of Common Stock.]2 1NTD: Only include any Series A Preferred Stock called for Xxxxxxx X. Xxxxxxredemption, who serves as trustee and any Series A Preferred Stock subsequently called for redemption that has been tendered for conversion will be redeemed on the applicable date of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in redemption instead of converted on the form applicable Change of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii)Control Conversion Date.
Appears in 1 contract
Samples: Underwriting Agreement (NexPoint Real Estate Finance, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder Operating Partnership acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Operating Partnership hereby waive and release, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the Selling Stockholder Operating Partnership by any Underwriter’s investment banking division. The Company and the Selling Stockholder Operating Partnership acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature page follows.] Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Operating Partnership and the several Underwriters. Very truly yours, HEARTLAND EXPRESSXXXXXXXX CAPITAL, INC. /s/ Xxxx X. Xxxxxxx By: Name: Xxxx X. Xxxxxxx Xxxxxxxx Title: Chief Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDERXXXXXXXX CAPITAL OPERATING PARTNERSHIP, LP By: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Capital, Inc., its general partner By: Name: Xxxx Xxxxxxxx X. Xxxxxx Title: Trustee Chief Executive Officer JCAP ADVISORS, LLC By: Name: Xxxx Xxxxxxxx Title: Chief Executive Officer CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative[s] and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Firm Shares XxxxxxTotal: SCHEDULE II Issuer Free Writing Prospectus SCHEDULE III Persons Subject to Lock-up JCAP Advisors, LLC Xxxx Xxxxxxxx Xxxxxxx X. Xxxx Xxxx X. Xxxxxx Xxx X. Xxxxxxx Xxxxxx X. Silver Xxxxx X. Xxxx W1 Capital, LLC SCHEDULE IV-1 Form of Opinion of Xxxxxxxx & CompanyXxxxxxxx, Incorporated 975,000 LLP SCHEDULE IV-2 Form of Tax Opinion of Xxxxxxxx Inc. 975,000 & Xxxxxxxx, LLP EXHIBIT A Form of Lock-up Agreement Lock-up Agreement March [ ], 2015 XXXXXXXX CAPITAL, INC. 0000 Xxxxxxxx Xxxxxx Xxxxx, XX 00000 XXXXXXX XXXXX & ASSOCIATES, INC. As Representative of the Several Underwriters c/o Raymond Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express& Associates, Inc. 000 Xxxxxxxx Xxxxxxx Xx. Xxxxxxxxxx, XX 00000 Re: Xxxxxxxx Capital, Inc. – Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of Dear Sirs: This letter is delivered to you pursuant to the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) to be entered into by Xxxxxxxx Capital, Inc. (the “Company”), on behalf as issuer, and Xxxxxxx Xxxxx & Associates, Inc., the representative (the “Representative”) of the several Underwriters named in Schedule I to such agreement certain underwriters (collectively, the “Underwriters”)) to be named therein. Upon the terms and subject to the conditions of the Underwriting Agreement, with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 Underwriters intend to effect a public offering of shares (the “Selling Stockholder”), providing for a public offering (the “Public OfferingShares”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share share, of the Company (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly as described in and contemplated by the undersigned registration statement of the Company on Form S-11, File No. 333-202219 (including holding the “Registration Statement”), as a custodian) or filed with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's SharesOffering”). The foregoing restriction undersigned recognizes that it is expressly agreed to preclude in the best financial interests of the undersigned, as an officer or director, or an owner of stock, options, warrants or other securities of the Company (the “Company Securities”), that the Company completes the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned from engaging in any hedging or other transaction that is designed to result inare, or that reasonably could be expected may be, subject to lead tocertain restrictions on transferability, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of including those imposed by someone other than the undersignedUnited States federal securities laws. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In additionNotwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as an inducement to the Underwriters to execute the Underwriting Agreement, the undersigned hereby acknowledges and agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, that the undersigned will not, during directly or indirectly, (i) offer, pledge, sell, contract to sell, contract to purchase, grant any option, right or warrant to purchase, lend or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the Lock-Up Perioddisposition by any person at any time in the future of) any Company Securities (collectively, make a “Disposition”), or any demand securities convertible into or exercisable or exchangeable for, or exercise any right with respect torights to purchase or otherwise acquire, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, any Company Securities held by the undersigned mayor acquired by the undersigned after the date hereof, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree may be deemed to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are beneficially owned by the undersigned or (collectively, the undersigned’s family members (as defined in Section A.1(a)(5) of “Lock-Up Securities”), pursuant to the General Instructions S-8 Rules and Regulations promulgated under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), for a period commencing on the date hereof and no ending 180 days after the date of the Company’s prospectus first filed pursuant to Rule 424(b) under the Act, inclusive (the “Lock-Up Period”), without the prior written consent of the Representative, (ii) enter into any swap or other public filing transaction that transfers to another, in whole or report regarding in part, any of the economic consequences of ownership of such Lock-Up Securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of the Lock-Up Securities or other Company Securities, in cash or otherwise, or (iii) exercise or seek to exercise or effectuate in any manner any rights of any nature that the undersigned has or may have hereafter to require the Company to register under the Act the undersigned’s sale, transfer shall be required or shall be voluntarily made other disposition of any of the Lock-Up Securities or other securities of the Company held by the undersigned, or to otherwise participate as a selling securityholder in any manner in any registration effected by the Company under the Act, including under the Registration Statement, during the Lock-Up Period. The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging, collar (whether or not for any consideration) or other transaction that is designed to or reasonably expected to lead or result in a Disposition of Lock-Up Securities during the Lock-Up Period, even if such Lock-Up Securities would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include any short sale or any purchase, sale or grant of any right (including any put or call option or reversal or cancellation thereof) with respect to any Lock-Up Securities or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Lock-Up Securities. If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any Company-directed Shares the undersigned may purchase in the Offering. If the undersigned is an officer or director of the Company, (i) the Representative agrees that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Common Stock, the Representative will notify the Company of the impending release or waiver and (ii) the Company will agree in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by the Representative hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (i) the release or waiver is effected solely to permit a transfer not for consideration and (ii) the transferee has agreed in writing to be bound by the same terms described in this letter to the extent and for the duration that such terms remain in effect at the time of the transfer. Notwithstanding the agreement not to make any Disposition during the Lock-Up Period, you have agreed that the undersigned may transfer the undersigned’s Lock-Up Securities (i) as a bona fide gift or gifts; (ii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned or if the undersigned is a trust, to any trust beneficiary (including such trust beneficiary’s estate) of the undersigned; (iii) by will or intestate succession upon the death of the undersigned; (iv) as a distribution to members, limited partners or stockholders of the undersigned; (v) to the undersigned’s affiliates; or (vi) with the prior written consent of the Representative on behalf of the Underwriters; provided, however, that in the case of any transfer pursuant to (i), (ii),(iii), (iv) or (v) above, it shall be a condition to the transfer that the donee, trustee, heir, or other transferee, as the case may be, agree to be bound in writing by the restrictions set forth herein; provided, further, that any transfer pursuant to (i), (ii), (iii), (iv) or (v) above shall not involve a disposition for value; provided, further, that no filing by the undersigned or any other party (including any donor, donee, transferor or transferee) under the Exchange Act or other public announcement reporting a reduction in beneficial ownership of shares of Common Stock held by the undersigned shall be required or shall be made voluntarily in connection with such transfer. For purposes of this Lock-Up Agreementletter, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As It is understood that, if the Underwriting Agreement (other than the provisions thereof that survive termination) shall terminate or be terminated prior to payment for and delivery of the date hereofShares, you will release the undersigned from the obligations under this letter agreement. In furtherance of the foregoing, the Undersigned’s Shares Company and its transfer agent and registrar are not, and for the duration hereby authorized to decline to make any transfer of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, Securities if such transfer would constitute a violation or granted as collateral or security for any obligationbreach of this letter. [In addition, notwithstanding the foregoing, during the Lock-Up Period, This letter shall be binding on the undersigned may sell or otherwise dispose and the respective successors, heirs, personal representatives and assigns of the Undersigned’s Shares for undersigned. Capitalized terms used but not defined herein have the purpose of raising proceeds respective meanings assigned to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined such terms in the Underwriting Agreement). Very truly yours, provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Name:
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Research Analyst Independence. The Company and each of the Selling Stockholder Guarantors acknowledge that (a) the Underwriters’ each Underwriter’s research analysts and research departments are required to be independent from their respective its investment banking divisions division and are subject to certain regulations and internal policies policies, and (b) the Underwriters’ that such Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective its investment banking divisions. The Company and each of the Selling Stockholder Guarantors hereby waive waives and releasereleases, to the fullest extent permitted by law, any claims that they the Company or such Guarantor may have against the Underwriters each Underwriter with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent its research analysts and research departments department may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder any of them by any such Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge that each of the Underwriters Guarantors acknowledges that each Underwriter is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the Company and any other companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that If the foregoing correctly sets forth is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between among the Company, the Selling Stockholder Underwriters and the several UnderwritersCompany in accordance with its terms. Very truly yours, HEARTLAND EXPRESSEQUITY ONE, INC. By: /s/ Xxxx X. Xxxxxxx Xxxxxx Name: Xxxx X. Xxxxxxx Xxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDERGUARANTORS: 2009 Centrefund Realty (U.S.) Corporation Equity One (Florida Portfolio) Inc. Equity One (Louisiana Portfolio) LLC Equity One (Northeast Portfolio) Inc. Equity One (Southeast Portfolio) Inc. Equity One (Xxxxxxxxx) Inc. Equity One (Sunlake) Inc. Equity One (Xxxxxx Heartland Trust UTA 7/15/2009 Xxxxx) Inc. Equity One Acquisition Corp. Equity One Realty & Management FL, Inc. Equity One Realty & Management NE, Inc. Equity One Realty & Management SE, Inc. IRT Alabama, Inc. IRT Capital Corporation II IRT Management Company Louisiana Holding Corp. By: /s/ Xxxxxxxx X. Xxxx Xxxxxx Name: Xxxxxxxx X. Xxxx Xxxxxx Title: Trustee Vice President IRT Partners, L.P. By: Equity One, Inc. By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx Title: Executive Vice President and Chief Financial Officer CONFIRMED AND ACCEPTED, as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED Bywritten: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETSSignatory XXXXXXX LYNCH, a division of BB&T SECURITIESPIERCE, LLC XXXXXX & XXXXX INCORPORATED By: /s/ Xxxx Xxxxxxxxxx Authorized Signatory BARCLAYS CAPITAL INC. By: /s/ Xxxxxx Xxxxxxx X. Authorized Signatory CITIGROUP GLOBAL MARKETS INC. By: /s/ Xxxxx Xxxx Authorized Representative Signatory XXXXXXX, XXXXX & CO. By: /s/ Xxxx Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Authorized Signatory For itself and as Representatives of the other Underwriters named in Schedule I A hereto. SCHEDULE A Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 of Underwriter Principal Amount of Securities Xxxxx Fargo Securities, LLC 650,000 $ 51,000,000 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $ 51,000,000 Barclays Capital Inc. $ 51,000,000 Citigroup Global Markets Inc. $ 51,000,000 Xxxxxxx, Sachs & Co. $ 51,000,000 BB&T Capital Markets, a division of BB&T SecuritiesXxxxx & Xxxxxxxxxxxx, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express$ 6,000,000 Deutsche Bank Securities Inc. $ 6,000,000 PNC Capital Markets LLC $ 3,000,000 Xxxxxxx Xxxxx & Associates, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T $ 3,000,000 RBC Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, $ 6,000,000 SunTrust Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland ExpressXxxxxxxx, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned$ 9,000,000 TD Securities (USA) LLC $ 6,000,000 U.S. Bancorp Investments, an officer and/or director of Heartland ExpressInc. $ 6,000,000 Total $ 300,000,000 SCHEDULE B EQUITY ONE, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement)INC. In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).300,000,000 3.75% SENIOR NOTES DUE 2022
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by applicable law, any claims that they the Company may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s such Underwriters’ investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that [Signature Page Follows] If the foregoing correctly sets forth is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Company, the Selling Stockholder Underwriters and the several UnderwritersCompany in accordance with its terms. Very truly yours, HEARTLAND EXPRESSNATIONAL OILWELL VARCO, INC. By: /s/ Xxxx X. Xxxxxxx Xxxxxxxx Name: Xxxx X. Xxxxxxx Xxxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee & CFO CONFIRMED AND ACCEPTED, as of the date first above mentionedwritten: XXXXX FARGO SECURITIES, on behalf of the Representatives and the other several Underwriters named in Schedule I heretoLLC BARCLAYS CAPITAL INC. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED X.X. XXXXXX SECURITIES LLC By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxxx Xxxxxx Authorized Representative Xxxxx Name: Xxxxxxx Xxxxxx - Title: Director BB&T By: BARCLAYS CAPITAL MARKETS, a division of BB&T SECURITIES, INC. By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Managing Director By: X.X. XXXXXX SECURITIES LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxxx Name: Xxxxx Managing Xxxxxx Title: Executive Director US 3297123v.16 Schedule I For themselves and as Representatives of the Underwriters named in Exhibit A hereto. EXHIBIT A Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 of Underwriter Principal Amount of 2017 Notes Principal Amount of 2022 Notes Principal Amount of 2042 Notes Xxxxx Fargo Securities, LLC 650,000 BB&T $ 62,500,000 $ 175,000,000 $ 137,500,000 Barclays Capital MarketsInc. 62,500,000 175,000,000 137,500,000 X.X. Xxxxxx Securities LLC 62,500,000 175,000,000 137,500,000 DNB Markets Inc. 62,500,000 175,000,000 137,500,000 Lloyds TSB Bank plc 62,500,000 175,000,000 137,500,000 Mitsubishi UFJ Securities (USA), a division of BB&T Inc. 62,500,000 175,000,000 137,500,000 Fifth Third Securities, Inc. 20,834,000 58,333,000 45,833,000 PNC Capital Markets LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express20,834,000 58,333,000 45,833,000 Scotia Capital (USA) Inc. 20,833,000 58,334,000 45,833,000 Skandinaviska Enskilda Xxxxxx XX (publ) 20,833,000 58,334,000 45,833,000 UniCredit Capital Markets LLC 20,833,000 58,333,000 45,834,000 U.S. Bancorp Investments, Inc. Lock20,833,000 58,333,000 45,834,000 Total $ 500,000,000 $ 1,400,000,000 $ 1,100,000,000 EXHIBIT B FORM OF PRICING TERM SHEET Filed Pursuant to Rule 433 Registration No. 333-Up Agreement XXXXXX184953 November 15, XXXXXXXX & COMPANY2012 NATIONAL OILWELL VARCO, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 RePricing Term Sheet $500,000,000 1.35% Senior Notes due 2017 $1,400,000,000 2.60% Senior Notes due 2022 $1,100,000,000 3.95% Senior Notes due 2042 Issuer: Heartland ExpressNational Oilwell Varco, Inc. - Lock-Up Agreement Ladies and GentlemenSecurity Ratings: The undersigned(Xxxxx’x / S&P)*: A2 / A- Ratings Outlooks: (Xxxxx’x / S&P)*: stable / stable Security Type: Senior Unsecured Notes Pricing Date: November 15, an officer and/or director of Heartland Express2012 Settlement Date (T+3): November 20, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).2012
Appears in 1 contract
Samples: Underwriting Agreement (National Oilwell Varco Inc)
Research Analyst Independence. The Company and the Selling Stockholder Partnership Parties acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the CompanyPartnership, the value of the Common Stock Units and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Partnership Parties hereby waive and release, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder Partnership Parties by any Underwriter’s investment banking division. The Company and the Selling Stockholder Partnership Parties acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Partnership Parties and the several Underwriters. Very truly yours, HEARTLAND EXPRESSXXXXXXX ROYALTY PARTNERS, INC. LP By: Xxxxxxx Royalty GP, LLC, its general partner /s/ Xxxx X. Xxxxxxx Xxxxxx Ravnass Name: Xxxx X. Xxxxxx Xxxxxxx Title: Chief Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 XXXXXXX ROYALTY GP, LLC /s/ Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Ravnass Name: Xxxxxxxx X. Xxxxxx Xxxxxxx Title: Trustee Chief Executive Officer XXXXXXX ROYALTY OPERATING, LLC /s/ Xxxxxx Ravnass Name: Xxxxxx Xxxxxxx Title: Chief Executive Officer CONFIRMED as of the date first above mentioned, on behalf for itself and as Representative of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, CREDIT SUISSE SECURITIES (USA) LLC By: /s/ Xxxxx Xxxxxx Xxxx Xxxxxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETSCONFIRMED as of the date first above mentioned, a division for itself and as Representative of BB&T SECURITIES, the several Underwriters named in Schedule I hereto. UBS SECURITIES LLC By: /s/ Xxxxxxx X. Xxxxxx Xxx Authorized Representative By: /s/ Xxxxxxxxx Xxxxx Authorized Representative SCHEDULE I Number of Name Firm Units Credit Suisse Securities (USA) LLC 1,418,183 UBS Securities LLC 709,091 Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx& Associates, Xxxxxxxx Inc. 218,181 RBC Capital Markets, LLC 218,181 Xxxxxxx Sachs & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Co. LLC 109,090 Xxxxx Fargo Securities, LLC 650,000 BB&T 109,090 Barclays Capital MarketsInc. 54,546 Xxxxxxxx Inc. 54,546 Tudor, a division of BB&T Pickering, Xxxx & Co. Securities, Inc. 54,546 Imperial Capital, LLC 650,000 Total: 3,250,000 Schedule 54,546 Total 3,000,000 SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Prospectus None. SCHEDULE III Persons Subject to Lock-Up · Xxxxxx X. Xxxxxxx · X. Xxxxx Xxxxxxx · Xxxx XxXxxxx · Xxxxxxx X. Xxxx · Xxxxx X. Xxxxxx · Xxx X. Xxxxxxx · T. Xxxxx Xxxxxx · Xxxxx X. Xxxxx · Xxxxxxx X. Xxxxx III · Xxxxx Xxxxx · Xxxxx Xxxxxx · Xxxx X. Xxxxxxxxx SCHEDULE IV Pricing Information Annex Number of Firm SharesUnits: 3,250,000 Number of Additional Shares: 487,500 3,000,000 Public Offering Price: $23.75 per share 19.00 SCHEDULE V Partnership Entities Domestic Foreign Qualified Percentage Owned Xxxxxxx Royalty Partners, LP Delaware Texas Xxxxxxx Royalty GP, LLC Delaware Texas Xxxxxxx Royalty Operating, LLC Delaware Texas Partnership Subsidiaries Xxxxxxx Royalty Holdings, LLC Delaware Alabama, Arkansas, California, Colorado, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Mississippi, Montana, Nebraska, Nevada, New York, North Dakota, Ohio, Oklahoma, South Dakota, Texas, Wyoming 100.0 % Xxxxxxx Intermediate Holdings, LLC Delaware Alabama, Arkansas, California, Colorado, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Mississippi, Montana, Nebraska, Nevada, New York, North Dakota, Ohio, Oklahoma, South Dakota, Texas, Wyoming 100.0 % Xxxxxxx Intermediate GP, LLC Delaware Alabama, Arkansas, California, Colorado, Illinois, Kansas, Kentucky, Louisiana, Mississippi, Nebraska, North Dakota, Oklahoma, Texas, Wyoming 100.0 % Xxxxxxxxxxx, X.X. Texas California, Colorado, Kansas, Louisiana, Oklahoma 100.0 % OGM Partners I Texas Louisiana 50.0 % Oakwood Minerals I, L.P. Texas California, Colorado, Louisiana, Oklahoma 92.572456 % RCPTX, Ltd. Texas Alabama, Arkansas, California, Colorado, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Oklahoma, Wyoming 83.834286 % Rivercrest Royalties, LLC Delaware Alabama, Arkansas, California, Colorado, Illinois, Kansas, Louisiana, Michigan, Mississippi, Montana, Ohio, Oklahoma, Texas, Wyoming 100.0 % Rochester Minerals, L.P. Texas California, Colorado, Kansas, Louisiana, Oklahoma 100.0 % Xxxxxxxx Holding Company, LLC Delaware Alabama, Arkansas, California, Colorado, Florida, Illinois, Kansas, Louisiana, Michigan, Mississippi, Montana, New Mexico, Oklahoma, South Dakota, Texas, Utah, Wyoming 100.0 % Xxxxxxxx Greenfield, LLC Delaware Texas 100.0 % Xxxxxxxx Properties GP, LLC Delaware Mississippi 100.0 % Xxxxxxxx Properties, LP Delaware Arkansas, Colorado, Illinois, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, Nebraska, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, Texas, Utah, Wyoming 100.0 % SCHEDULE VI Written Testing-the-Waters Communications None. EXHIBIT A Form of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXXSeptember 27, XXXXXXXX & COMPANY2018 XXXXXXX ROYALTY PARTNERS, INCORPORATED XXXXXXXX INC. Xxxxx Fargo SecuritiesLP 000 Xxxxxx Xxxxxx, Suite 810 Fort Worth, Texas 76102 CREDIT SUISSE SECURITIES (USA) LLC BB&T Capital Markets, a division of BB&T Securities, UBS SECURITIES LLC As Representatives of the Several Underwriters xc/x Xxxxxxo Credit Suisse Securities (USA) LLC Eleven Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000-0000 c/o UBS Securities LLC 0000 Xxxxxx xx xxx Xxxxxxxx & CompanyXxx Xxxx, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 XX 00000-0000 Re: Heartland ExpressXxxxxxx Royalty Partners, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation LP (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “RepresentativesPartnership”) propose - Restriction on Common Unit Sales Dear Sirs: This letter is delivered to enter into an you pursuant to the Underwriting Agreement (the “Underwriting Agreement”) to be entered into by Xxxxxxx Royalty Partners, LP, a Delaware limited partnership (the “Partnership”), on behalf as issuer, Xxxxxxx Royalty GP, LLC, a Delaware limited liability company and the general partner of the several Underwriters named in Schedule I to such agreement Partnership (collectivelythe “General Partner”), Xxxxxxx Royalty Operating, LLC, and Credit Suisse Securities (USA) LLC and UBS Securities LLC, the representatives (the “Representatives”) of certain underwriters (the “Underwriters”)) named therein. Upon the terms and subject to the conditions of the Underwriting Agreement, with the Company and Underwriters intend to effect a public offering of common units representing limited partners interests of the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 Partnership (the “Selling StockholderUnits”), providing for a public offering as described in and contemplated by the registration statement of the Partnership on Form S-3, File No. 333-226425, as initially filed with the Securities and Exchange Commission on July 30, 2018 (as amended, the “Registration Statement”), and as became effective on September 21, 2018 (the “Public Offering”) ). The undersigned recognizes that it is in the best financial interests of Shares the undersigned, as an officer or director or the General Partner, or an owner of Common Units, options, warrants or other securities of the Partnership (the “Partnership Securities”), that the Partnership complete the proposed Offering. The undersigned further recognizes that the Partnership Securities held by the undersigned are, or may be, subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters that the Partnership Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as defined in an inducement to the Underwriters to execute the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby acknowledges and agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not (i) offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale purchase or otherwise dispose of (collectively, a “Disposition”) any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common StockPartnership Securities, or any securities convertible intointo or exercisable or exchangeable for, exchangeable for or any rights to purchase or otherwise acquire, any Partnership Securities held by the undersigned or acquired by the undersigned after the date hereof, or that represent the right may be deemed to receive shares of Common Stock, whether now be beneficially owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect collectively, the “Lock-Up Units”), pursuant to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 promulgated under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), for a period commencing on the date hereof and no ending 60 days after the date of the Partnership’s prospectus first filed pursuant to Rule 424(b) under the Act, inclusive (the “Lock-Up Period”), without the prior written consent of the Representatives or (ii) exercise or seek to exercise or effectuate in any manner any rights of any nature that the undersigned has or may have hereafter to require the Partnership to register under the Act the undersigned’s sale, transfer or other public filing disposition of any of the Lock-Up Units or report regarding such transfer shall be required other securities of the Partnership held by the undersigned, or shall be voluntarily made to otherwise participate as a selling securityholder in any manner in any registration effected by the Partnership under the Act, including under the Registration Statement, during the Lock-Up Period. For purposes The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging, collar (whether or not for any consideration) or other transaction that is designed to or reasonably expected to lead or result in a Disposition of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of Units during the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement Period, even if such Lock-Up Units would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include any short sale or any purchase, sale or grant of any right (including any put or call option or reversal or cancellation thereof) with respect to any Lock-Up Units or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Lock-Up Units. Notwithstanding the Undersigned’s Shares will agreement not be, pledged, hypothecated, or granted as collateral or security for to make any obligation. [In addition, notwithstanding the foregoing, Disposition during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect agrees that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).foregoing restrictions shall not apply to:
Appears in 1 contract
Samples: Underwriting Agreement (Kimbell Royalty Partners, LP)
Research Analyst Independence. The Company and the Selling Stockholder Shareholders acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Offered Securities and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Shareholders hereby waive waives and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the and/or Selling Stockholder Shareholders by any Underwriter’s investment banking division. The Company and the Selling Stockholder Shareholders acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Shareholders and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice MIX TELEMATICS LIMITED President of Finance and Chief Financial Executive Officer THE AFFILIATED SELLING STOCKHOLDERSHAREHOLDERS NAMED IN SCHEDULE II HERETO, ACTING SEVERALLY By: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee Attorney-in-Fact CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXXXX XXXXX FARGO SECURITIES& COMPANY, LLC L.L.C. By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Shares Xxxxxxof Firm Securities Xxxxxxx Xxxxx & Associates, Xxxxxxxx Inc. Xxxxxxx Xxxxx & Company, Incorporated 975,000 Xxxxxxxx L.L.C. Canaccord Genuity Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Xxxxxxxxxxx & Co. Inc. Total: 3,250,000 SCHEDULE II Schedule II of Selling Shareholders Selling Shareholders Party to the Selling Shareholder Agreement: Shareholder Number of Firm Securities Number of Additional Securities GAF Trust Masalini Capital Proprietary Limited Masalini Investments No.3 Proprietary Limited Thynk Capital Proprietary Limited Xxxxxxx and Xxxx Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxx Xxxxxx Xxxxxxx Xxxxxxxx RFAI Services CC The Josam Trust Xxxxx & Xxxxx Welgemoed Insight Consulting CC Xxxxx Xxxxxxxxxx Selling Shareholders Party to the Underwriting Agreement (each, an “Affiliate Selling Shareholder”): Shareholder Number of Firm Securities Number of Additional Securities IS Wealth Creator SPI Sr Bruyns Xxxxxx Xxxxxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxx Xxxxxx Xxxxx SCHEDULE III Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. SCHEDULE IV Persons Subject to Lock-Up Agreement XXXXXX, XXXXXXXX up Xxxxxx Xxxxx Xxxxx Xxxx Xxxxx Xxxxx Fundiswa Roji Xxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxxxx Xxxxxx Xxxxx Xxxxx Xxxxx Xxxxx Pydigadu Xxxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxx Xxxx Xxxxxxxxx Xxxx Xxxxx Imperial Group Holdings GAF Trust Masalini Capital (Pty) Ltd Thynk Capital (Pty) Masalini No.3 Pty Ltd Q & COMPANY, INCORPORATED XXXXXXXX INCJ Baillie(Non-Res) Xxxxxxx Xxxxxxxx Deanery Investments Holdings Limited c/o Pictet et Cie Banquiers Deanery Investment Limited c/o UBS Zurich AG-Client Assets Xxxxxxx Xxxxxxxx Xxxxx Xxxxxx Xxxxxxx Xxxxxxxx RFAI Services CC The Josam Trust Piet & Xxxxx Welgemoed IS Wealth Creator SPI Sr. Bruyns Insight Consulting CC Xx. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division Xxxxxxxxxx SCHEDULE V WRITTEN TESTING-THE-WATERS COMMUNICATIONS EXHIBIT A Form of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director EXHIBIT B Form of Heartland Express, Inc., a Nevada corporation (the “Company”), or one Opinion of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose U.S. Counsel to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) EXHIBIT C Form of Shares (as defined in the Underwriting Agreement). In consideration Opinion of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating South African Counsel to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent Company EXHIBIT D Form of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose Opinion of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession United Kingdom Counsel to the legal representative, heir, beneficiary or a member Company EXHIBIT E Form of the immediate family Opinion of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee Werksmans Attorneys EXHIBIT F Form of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent Opinion of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) Xxxxxxx Xxx EXHIBIT G Form of the General Instructions S-8 under the Securities Act Opinion of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report Counsel to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Depositary EXHIBIT H
Appears in 1 contract
Samples: MiX Telematics LTD
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ Underwriter’s research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters Underwriter with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ Underwriter’s independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or by the Selling Stockholder by any Underwriter’s investment banking division. The Company and acknowledges that the Selling Stockholder acknowledge that each of the Underwriters Underwriter is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that If the foregoing correctly sets forth the agreement understanding between the Underwriter and the Company, please so indicate in the Selling Stockholder and the several Underwritersspace provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. Very truly yours, HEARTLAND EXPRESSECO-STIM ENERGY SOLUTIONS, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ J. Cxxxx Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESName: J. Cxxxx Xxxxxxx Title: President and CEO Accepted on the date first above written. RXXX CAPITAL PARTNERS, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division Axxxx Xxxxxxxx Name: Axxxx Xxxxxxxx Title: Head of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Equity Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit Markets Signature Page to Underwriting Agreement EXHIBIT A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX___________ __, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities201_ Rxxx Capital Partners, LLC BB&T Capital Markets800 Xxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxx, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx XX 00000 ReAttn: Heartland Express, Inc. - Lock-Up Agreement Managing Director Ladies and Gentlemen: The undersignedundersigned understands that Rxxx Capital Partners, LLC (the “Underwriter”) proposes to enter into an officer and/or director of Heartland ExpressUnderwriting Agreement (the “Underwriting Agreement”) with Eco-Stim Energy Solutions, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a the public offering (the “Public Offering”) by the Underwriter of Shares __________ shares of common stock (as defined in “Firm Shares”), par value $0.001 per share, of the Underwriting AgreementCompany (the “Shares”). In consideration of To induce the agreement by Underwriter to continue its efforts in connection with the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledgedPublic Offering, the undersigned hereby agrees that, without the prior written consent of the Underwriter, it will not, during the period beginning commencing on the date hereof and ending on the date that is 90 180 days from after the date of the final prospectus (the “Prospectus”) relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that(1) offer, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offerpledge, sell, contract to sell, pledgegrant, lend, grant any option to purchase, make any short sale or otherwise transfer or dispose of of, directly or indirectly, any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, Shares or any securities convertible into, into or exercisable or exchangeable for Shares, or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian2) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in enter into any hedging swap or other transaction arrangement that is designed transfers to result inanother, in whole or that reasonably could be expected to lead toin part, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s economic consequences of ownership of the Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Shares or with respect to any security that includessuch other securities, relates to in cash or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Sharesotherwise. Notwithstanding the foregoing, the undersigned may, during may transfer Shares without the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member prior consent of the immediate family Underwriter in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the undersignedPublic Offering, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (iino filing under Section 16(a) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of Shares or other securities acquired in such open market transactions, (b) if the undersigned is an individual, transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no other public filing or report regarding such transfer under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the Lock-Up up Period, (c) transfer of Shares to a charity or educational institution, (d) if the undersigned is, or directly or indirectly controls, a corporation, partnership, limited liability company or other business entity, any transfers of Shares to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned, as the case may be, if, in any such case, such transfer is not for value, or (e) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer of Shares made by the undersigned (i) in connection with the sale or other bona fide transfer in a single transaction of all or substantially all of the undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigned’s assets, in any such case not undertaken for the purpose of avoiding the restrictions imposed by this agreement or (ii) to another corporation, partnership, limited liability company or other business entity so long as the transferee is an affiliate of the undersigned and such transfer is not for value. For purposes Notwithstanding the foregoing, if (x) the Company issues an earnings release or material news, or a material event relating to the Company occurs, during the last 17 days of this the Lock-Up AgreementPeriod, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As (y) prior to the expiration of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement Period, the Undersigned’s Shares Company announces that it will not berelease earnings results during the 16-day period beginning on the last day of the Lock-Up Period, pledgedthe restrictions imposed by this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, hypothecated, or granted as collateral or security for any obligationunless the Underwriter waives such extension in writing. [In addition, notwithstanding the foregoing, undersigned agrees that during the Lock-Up Period, without the undersigned may sell or otherwise dispose prior written consent of the UndersignedUnderwriter, it will not make any demand for or exercise any right with respect to the registration of any Shares or any security convertible into or exercisable or exchangeable for Shares. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares for except in compliance with this Agreement. No provision in this agreement shall be deemed to restrict or prohibit the purpose of raising proceeds to cover exercise or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred exchange by the undersigned as a result of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares, provided that the vesting, undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof unless otherwise permitted pursuant to stock plans disclosed in the Time terms of Sale Information this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a so-called “10b5-1” plan at any time (as defined in other than the Underwriting Agreement), provided that each such transfer shall occur on entry into or about the time modification of such vesting and shall be a plan in such a manner as to cause the sale of an amount of the Undersigned’s any Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s or any securities convertible into or exercisable or exchangeable for Shares during within the Lock-Up Period as a result of such sale or disposition, the Period). The undersigned shall include a statement in such report to the effect understands that the purpose of such sale or other disposition was to cover tax obligations Company and the Underwriter are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned in connection with the vesting of further understands that this agreement is irrevocable and shall be binding upon the undersigned’s restricted shares heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by ____________, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxxthe Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, who serves as trustee including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of several GRATs established by his motherwhich are subject to negotiation between the Company and the Underwriter. Very truly yours, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares (Name): (Address) Signature Page to her or to other trusts set up for her benefit, which would be covered by clause (ii).Underwriting Agreement
Appears in 1 contract
Samples: Underwriting Agreement (Eco-Stim Energy Solutions, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering and sale of the Shares that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, INC. VOLITIONRX LIMITED /s/ Xxxx X. Xxxxxxx Xxxxxxxx Name: Xxxx X. Xxxxxxx Xxxxxxxx Title: Chief Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx NATIONAL SECURITIES CORPORATION By:/s/ Xxxxxxxx X. Xxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm of Firm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division Number of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule Additional Shares National Securities Corporation 4,365,000 654,750 Total 4,365,000 654,750 SCHEDULE II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Price per share to the public: $2.75 Firm Shares: 3,250,000 Number of 4,365,000 Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. 654,750 SCHEDULE III Persons Subject to Lock-Up up Xxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxx Xxxxx Xxxxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx Xxxxxx EXHIBIT A Form of Lock-up Agreement XXXXXX__________, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives 2020 National Securities Corporation as Representative of the Several Underwriters xc/x o National Securities Corporation 000 Xxxxxx Xxxxxx, Xxxxxxxx & Company25th Floor New York, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 New York 10281 Re: Heartland Express, Inc. - Lock-Up Agreement :Public Offering of VolitionRx Limited Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc.This Letter Agreement is being delivered to you, a Nevada holder of common stock, par value $0.001 per share (“Common Stock”), or rights to acquire Common Stock, of VolitionRx Limited, a Delaware corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, in connection with the “Representatives”) propose to enter into an proposed Underwriting Agreement (the “Underwriting Agreement”)) to be entered into by and between the Company and National Securities Corporation, on behalf as representative (the “Representative”) of the several Underwriters underwriters named in Schedule I to such agreement the Agreement (collectively, the “Underwriters,” or each, an “Underwriter”), with respect to the proposed public offering of securities of the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling StockholderSecurities”), providing for ) pursuant to a public offering registration statement (the “Public Registration Statement”) on Form S-3 (File No. 333-227248; the “Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the Underwriters’ agreement by to enter into the Underwriters Agreement and to offer and sell proceed with the SharesOffering of the Securities, and of for other good and valuable consideration the consideration, receipt and sufficiency of which is hereby acknowledged, the undersigned hereby agrees for the benefit of the Company and the Underwriters that, without the prior written consent of the Representative, the undersigned will not, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”) after the date of the prospectus supplement relating to the Offering (the “Prospectus Supplement”), directly or indirectly (1) offer, pledge, assign, encumber, announce the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offerintention to sell, sell, contract to sell, pledgesell any option or contract to purchase, lendpurchase any option or contract to sell, grant any option option, right or warrant to purchase, make any short sale or otherwise transfer or dispose of any shares of the Company’s Common Stockof, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, Stock or any securities convertible into, into or exercisable or exchangeable for Common Stock owned either of record or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members beneficially (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) by the undersigned on the date hereof or hereafter acquired or (2) enter into any swap or other agreement that transfers, and in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, or publicly announce an intention to do any of the foregoing. In addition, the undersigned agrees that, without the prior written consent of the Representative, it will not, during the period ending 90 days after the date of the Prospectus Supplement, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The limitations set forth in the foregoing paragraph shall not apply to (a) transactions relating to shares of Common Stock or other securities acquired in the Offering or in open market transactions after the completion of the Offering, provided that no other public filing or report regarding such transfer under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made during in connection with subsequent sales of Common Stock or other securities acquired in the Lock-Up Period. For Offering or in such open market transactions; (b) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock (i) as a bona fide gift or for bona fide estate planning purposes, (ii) upon death or by will, testamentary document or intestate succession, (iii) to an immediate family member of the undersigned or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this Lock-Up Agreementagreement, “immediate family” shall mean any relationship by blood, current or former marriage or adoption, not more remote than first cousin. As ), (iv) not involving a change in beneficial ownership, (v) if the undersigned is a trust, to any beneficiary of the date hereofundersigned or the estate of any such beneficiary, or (vi) to a charity or educational institution; (c) distributions or transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to stockholders, direct or indirect affiliates (within the Undersigned’s Shares are notmeaning set forth in Rule 405 under the Securities Act of 1933, and as amended), current or former partners (general or limited), members or managers of the undersigned, as applicable, or to the estates of any such stockholders, affiliates, partners, members or managers; (d) sales under any existing Rule 10b5-1 plan or the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the duration transfer of this shares of Common Stock, provided that with respect to the establishment of a plan (i) such plan does not provide for the transfer of shares of Common Stock during the Lock-Up Agreement Period and (ii) no public announcement or filing under the Undersigned’s Shares will not be, pledged, hypothecated, Exchange Act regarding the establishment of such plan shall be required or granted as collateral shall be voluntarily made by or security for any obligation. [In addition, notwithstanding on behalf of the foregoing, undersigned or the Company during the Lock-Up Period; and (e) sales of Common Stock pursuant to the terms of the Agreement, provided, in the case of clauses (b)-(c), that such transfer shall not involve a disposition for value and the transferee agrees in writing with the Underwriters and the Company to be bound by the terms hereof. Moreover, the undersigned may sell foregoing restrictions shall not apply to (i) the exercise of stock options or otherwise dispose other equity awards granted pursuant to the Company’s equity incentive plans prior to the date of the Undersigned’s Shares for Prospectus Supplement; (ii) cashless “net” exercises of options and warrants held by the purpose of raising proceeds to cover or otherwise satisfying undersigned; and (iii) the reasonably estimated U.S. federal or state tax liability incurred receipt by the undersigned as a result of any securities of the vestingCompany directly from the Company, during the Lock-Up Periodincluding, of restricted but not limited to, shares of Common Stock outstanding on the date hereof and stock options granted pursuant to stock plans disclosed in the Time Company’s equity incentive plans, and warrants exercisable for securities of Sale Information (as defined in the Underwriting Agreement), Company; provided that each any securities of the Company issued upon exercise thereof shall continue to be subject to the terms of this Letter Agreement. In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer shall occur on would constitute a violation or about breach of this Letter Agreement. The undersigned hereby represents and warrants that the time undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred and any obligations of such vesting and the undersigned shall be of an amount binding upon the successors, assigns, heirs or personal representatives of the Undersigned’s Shares that raises gross proceeds undersigned. The undersigned understands that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required Agreement does not become effective, or if the Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to make a filing under the Exchange Act reporting a reduction in beneficial ownership payment for and delivery of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or dispositionCommon Stock to be sold thereunder, the undersigned shall include a statement be released from all obligations under this Letter Agreement. The undersigned, whether or not participating in such report the Offering, understands that the Underwriters are entering into the Agreement and proceeding with the Offering in reliance upon this Letter Agreement. This Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the effect that the purpose conflict of such sale or laws principles thereof (other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTDthan New York General Obligations Law § 5-1401). Very truly yours, [STOCKHOLDER] By:______________________________________ Name: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Title:
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder Operating Partnership acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Operating Partnership hereby waive and release, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the Selling Stockholder Operating Partnership by any Underwriter’s investment banking division. The Company and the Selling Stockholder Operating Partnership acknowledge that each of the Underwriters is a full full-service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Execution Version Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Operating Partnership, the Manager and the several Underwriters. Very truly yours, HEARTLAND EXPRESSNEXPOINT REAL ESTATE FINANCE, INC. By: /s/ Xxxx X. Xxxxxxx Xxxxx Xxxxx Name: Xxxx X. Xxxxxxx Xxxxx Xxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDEROfficer, Executive VP-Finance, Secretary and Treasurer NEXPOINT REAL ESTATE FINANCE OPERATING PARTNERSHIP, L.P. By: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 NexPoint Real Estate Finance Operating Partnership GP, LLC By: /s/ Xxxxxxxx X. Xxxxxx Xxxxx Xxxxx Name: Xxxxxxxx X. Xxxxxx Xxxxx Xxxxx Title: Trustee Chief Financial Officer, Executive VP-Finance, Secretary and Treasurer NEXPOINT REAL ESTATE ADVISORS VII, L.P. By: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Chief Financial Officer, Executive VP-Finance, Secretary and Treasurer Signature Page to Underwriting Agreement of NexPoint Real Estate Finance, Inc. CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Jozsi Popper Authorized Representative XXXXX FARGO SECURITIESSignature Page to Underwriting Agreement of NexPoint Real Estate Finance, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule Inc. SCHEDULE I Name Number ofFirm Shares XxxxxxPrincipal Amount of Notes to be Purchase Xxxxxxx Xxxxx & Associates, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 $ 75,000,000 Total: 3,250,000 Schedule II SCHEDULE II-1 Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation Term Sheet (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in attached hereto as Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting AgreementII-2). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx Schedule II-1 SCHEDULE II-2 [TERM SHEET] SCHEDULE III-1 [FORM OF OPINION OF WINSTON & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx XXXXXX LLP] SCHEDULE III-2 [FORM OF TAX OPINION OF WINSTON & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, XXXXXX LLP] SCHEDULE III-3 [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).FORM OF OPINION OF XXXXXXX XXXXX LLP]
Appears in 1 contract
Samples: Underwriting Agreement (NexPoint Real Estate Finance, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder Shareholders acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Shareholders hereby waive waives and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the and/or Selling Stockholder Shareholders by any Underwriter’s investment banking division. The Company and the Selling Stockholder Shareholders each acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Stockholders and the several Underwriters. Very truly yours, HEARTLAND EXPRESSApplied Optoelectronics, INC. /s/ Xxxx X. Xxxxxxx Inc. Xxxxxxxx Xxx President and Chief Executive Officer The Selling Stockholders Named in Schedule II Hereto, Acting Severally By: Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee Attorney-in-Fact CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESXXXXXXX & CO. By: Authorized Representative SIGNATURE PAGE TO UNDERWRITING AGREEMENT SCHEDULE I Schedule of Underwriters Number Name Firm Shares Xxxxxxx Xxxxx & Associates, Inc. Xxxxx Xxxxxxx & Co. Xxxxx and Company, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIESXxxx Capital Partners, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 SCHEDULE II Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Selling Stockholders Stockholder Maximum Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressShares GRC II Corp. Grand River Capital Investment Company Limited Global Strategic Investment Inc. Budworth Investments Limited Sycamore Venture Capital, X.X. Xxxxxxx Investments Limited AsiaStar IT Fund, L.P. Asia Sino Far East Limited Harbinger III Venture Capital Corp. NCKU Venture Capital Co., Ltd Sky Harvest Investments Limited Xxxx Xxxxx Xxx-Min Xxxxx Xxx Xxxxxxx Xxx Dyna Investment Co., Ltd. Lite-On Inc. LockXxxx Xxx Hung Dynacom Development Co., Ltd Xxxxxx Xxxx Xxxx Xx-Up Agreement XXXXXXXxxx Tu Great Root International Co., XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Ltd Xxx Xxxxx XxxxxxVenture Capital Co., 00xx LTD Xxxxx-Xx Xxxx Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - LockChuan Chih Che Ko-Up Agreement Ladies and Gentlemen: Pin Xxx Xxxxx Xxx Xxxxxx Xxxx Xxx Xxxx Xx Chin-Xxx Xxxx Xxxx Xxxx Lu Xxxx Xxxx Tu Xxxx Xxxxx Xxxx Xxxx Man Xxxxx Xxx-Xxx Lee Xxx Xxx Xxxxx Xxxx Xxxx Xxx Xxxx Xxx Shu Chuan Xxx Xxxxxx X. X. Xxxxx Xxxx-Xxx Xxxx Jenqrong Wen The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Loughlin Family Partnership Yin Xxxx Xxx
Appears in 1 contract
Samples: Underwriting Agreement (Applied Optoelectronics, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, INC. ADAMIS PHARMACEUTICALS CORPORATION /s/ Xxxx Dxxxxx X. Xxxxxxx Xxxxx Name: Xxxx Dxxxxx X. Xxxxxxx Xxxxx Title: Executive Vice President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Axxxxx X. Xxxxxx Authorized Representative XXXXX FARGO SECURITIESVP, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule GXXX Equity Syndicate SCHEDULE I Name Number ofFirm of Firm Shares XxxxxxRxxxxxx Jxxxx & Associates, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 40,540,540 Total: 3,250,000 Schedule 40,540,540 SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Prospectus None. SCHEDULE III Persons Subject to Lock-Up up Dxxxxx X. Xxxxx, Ph.D Rxxxxxx X. Xxxxxxxx Dxxxx X. Xxxxxxxxx Rxxxxx X. Xxxxxxx Rxxxxx X. Xxxx, M.D. Rxxxxxx X. Xxxxx Hxxxxx X. Xxxxxxxx EXHIBIT A Form of Lock-up Agreement XXXXXX___, XXXXXXXX 2021 Adamis Pharmaceuticals Corporation 10000 Xx Xxxxxx Xxxx, Xxxxx 000 Xxx Xxxxx, Xxxxxxxxxx 00000 RXXXXXX JXXXX & COMPANYASSOCIATES, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives Representative of the Several Underwriters xc/x Xxxxxxo Raymond Jxxxx & Associates, Inc. 800 Xxxxxxxx & CompanyXxxxxxx Xx. Xxxxxxxxxx, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx XX 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation Adamis Pharmaceuticals Corporation (the “"Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC ) - Restriction on Stock Sales Dear Sirs and BB&T Capital Markets, a division of BB&T Securities, LLC (together, Madams: This letter is delivered to you pursuant to the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)) to be entered into by the Company, on behalf as issuer, and Rxxxxxx Jxxxx & Associates, Inc., the representative (the “Representative”) of the several Underwriters named in Schedule I to such agreement certain underwriters (collectively, the “Underwriters”)) to be named therein. Upon the terms and subject to the conditions of the Underwriting Agreement, with the Underwriters intend to effect a public offering of Common Stock, par value $0.0001 per share, of the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling StockholderShares”), providing for a public offering as described in and contemplated by the registration statement of the Company on Form S-3, File No. 333-226100 (the “Public Registration Statement”), as filed with the Securities and Exchange Commission on July 9, 2018 (the “Offering”) ). The undersigned recognizes that it is in the best financial interests of Shares the undersigned, as an officer or director, or an owner of stock, options, warrants or other securities of the Company (the “Company Securities”), that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or may be, subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as defined in an inducement to the Underwriters to execute the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby acknowledges and agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not (i) offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale purchase or otherwise dispose of (collectively, a “Disposition”) any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common StockCompany Securities, or any securities convertible intointo or exercisable or exchangeable for, exchangeable for or any rights to purchase or otherwise acquire, any Company Securities held by the undersigned or acquired by the undersigned after the date hereof, or that represent the right may be deemed to receive shares of Common Stock, whether now be beneficially owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively collectively, the “Undersigned's Lock-Up Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession pursuant to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, Rules and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 Regulations promulgated under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), for a period commencing on the date hereof and no ending 60 days after the date of the Company’s Prospectus first filed pursuant to Rule 424(b) under the Act, inclusive (the “Lock-Up Period”), without the prior written consent of Rxxxxxx Jxxxx & Associates, Inc. or (ii) exercise or seek to exercise or effectuate in any manner any rights of any nature that the undersigned has or may have hereafter to require the Company to register under the Act the undersigned’s sale, transfer or other public filing disposition of any of the Lock-Up Shares or report regarding such transfer shall be required other securities of the Company held by the undersigned, or shall be voluntarily made to otherwise participate as a selling securityholder in any manner in any registration effected by the Company under the Act, including under the Registration Statement, during the Lock-Up Period. For purposes The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging, collar (whether or not for any consideration) or other transaction that is designed to or reasonably expected to lead or result in a Disposition of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, even if such Lock-Up Shares would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include any short sale or any purchase, sale or grant of any right (including any put or call option or reversal or cancellation thereof) with respect to any Lock-Up Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Lock-Up Shares. Notwithstanding the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds agreement not to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, make any Disposition during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect you have agreed that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).foregoing restrictions shall not apply to:
Appears in 1 contract
Samples: Underwriting Agreement (Adamis Pharmaceuticals Corp)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, PLX PHARMA INC. /s/ Xxxx X. Xxxxxxx By: Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee Title CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Number Name Number ofFirm Firm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Prospectus - 33 - SCHEDULE III Persons Subject to Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).up
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Class A Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSXXXXXXX WASTE SYSTEMS, INC. /s/ Xxxx Xxxxxx X. Xxxxxxx Name: Xxxx Xxxxxx X. Xxxxxxx Title: Executive Senior Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxx X. Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule [Signature Page to Underwriting Agreement] SCHEDULE I Name Number ofFirm of Firm Shares XxxxxxXxxxxxx Xxxxx & Associates, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities3,100,000 Total: 3,100,000 SCHEDULE II Issuer Free Writing Prospectus None. SCHEDULE III Subsidiaries Casella Major Account Services, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressXxxxxxx Waste Management, Inc. LockCasella Transportation, Inc. Northern Properties Corporation of Plattsburgh Xxxxxxx Waste Management of Pennsylvania, Inc. CV Landfill, Inc. Xxxxx Hollow Regeneration Corp. All Cycle Waste, Inc. Xxxxxxx Waste Management of Massachusetts, Inc. Oxford Transfer Station LLC Casella of Holyoke, Inc. Xxxxxxx Waste Management of N.Y., Inc. Portland C & D Site, Inc. Xxxxxxx Landfill, Inc. Waste-Up Agreement XXXXXXStream, XXXXXXXX Inc. Blow Bros. NEWS of Worcester LLC New England Waste Services, Inc. New England Waste Services of Vermont, Inc. North Country Environmental Services, Inc. Bristol Waste Management, Inc. Newbury Waste Management, Inc. Sunderland Waste Management, Inc. Forest Acquisitions, Inc. Xxxxxxxx Landfill, Inc. Southbridge Recycling and Disposal Park, Inc. New England Waste Services of N.Y., Inc. The Xxxxxx Facility Associates Xxxxx C & COMPANYD Disposal, INCORPORATED XXXXXXXX INC. Xxxxx Fargo SecuritiesInc. Chemung Landfill LLC GroundCo LLC Xxxxxxx Waste Services of Ontario LLC Xxxxxxxx County Recycling LLC KTI, Inc. Casella Recycling LLC BB&T Capital MarketsKTI Environmental Group, a division Inc. Pine Tree Waste, Inc. KTI Specialty Waste Services, Inc. New England Waste Services of BB&T SecuritiesME, Inc. NEWSME Landfill Operations LLC As Representatives RecycleBank LLC SCHEDULE IV Direct and Indirect Equity or Ownership Interest of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland ExpressCompany Agreen Energy LLC Asian Energy Limited, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersignedBgreen Energy LLC Evergreen National Indemnity Company GreenerU, an officer and/or director of Heartland ExpressInc. RecycleRewards, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Inc. SCHEDULE V Pricing Terms
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder Operating Partnership acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Operating Partnership hereby waive and release, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the Selling Stockholder Operating Partnership by any Underwriter’s investment banking division. The Company and the Selling Stockholder Operating Partnership acknowledge that each of the Underwriters is a full full-service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature page follows.] Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Operating Partnership, the Adviser and the several Underwriters. Very truly yours, HEARTLAND EXPRESSNEXPOINT RESIDENTIAL TRUST, INC. By: /s/ Xxxx X. Xxxxxxx Xxxxx Xxxxx Name: Xxxx X. Xxxxxxx Xxxxx Xxxxx Title: Chief Financial Officer, Executive VP-Finance and Treasurer NEXPOINT RESIDENTIAL TRUST OPERATING PARTNERSHIP, L.P. By: NexPoint Residential Trust Operating Partnership GP, LLC By: NexPoint Residential Trust, Inc., as sole member By: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Chief Financial Officer, Executive VP-Finance and Treasurer NEXPOINT REAL ESTATE ADVISORS, L.P. By: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Jozsi Popper Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, XXXXXXXXX LLC By: /s/ Xxxxxxx X. Xxxxx Xxxxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm of Firm Shares XxxxxxXxxxxxx Xxxxx & Associates, Inc. 1,175,000 Xxxxxxxxx LLC 822,500 X.X. Xxxxxxxx & Company, Incorporated 975,000 Co. 176,250 Ladenburg Xxxxxxxx & Co. Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 176,250 Total: 3,250,000 Schedule II 2,350,000 SCHEDULE II-1 Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Prospectus None. SCHEDULE II-2 Pricing Information Number of Firm Shares: 3,250,000 2,350,000 Number of Additional Shares: 487,500 352,500 Public Offering PricePrice per Share: $23.75 per share 33.00 SCHEDULE III Persons Subject to Lock-up Xxxxx Xxxxxxx Xxxxx Xxxxx Xxxxxx Xxxxxxxxxxx Xxxxx Xxxxxxxxx Xxxxxx Xxxxxx Xxxx XxXxxxxx Xxxxxxx Xxxxx Xxxxx Xxxxxxxxx Highland Capital Management LP NexPoint Advisors, L.P. Highland Capital Management Fund Advisors, L.P. SCHEDULE IV Subsidiaries Formed Subsequent to Filing of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express10-K for Fiscal Year 2017 NXRT Abbington, LLC NXRT Brandywine GP I, LLC NXRT Brandywine XX XX, LLC NXRT Brandywine LP, LLC NXRT Cedar Pointe, LLC NXRT Cedar Pointe Tenant, LLC NXRT Crestmont, LLC NXRT Xxxxxxx Landing GP, LLC NXRT Xxxxxxx Landing LP, LLC Pear Ridge Partners, LLC SOF Brandywine I Owner, L.P. SOF Brandywine II Owner, L.P. SOF-X GS Owner, L.P. Subsidiaries Dissolved Subsequent to Filing of 10-K for Fiscal Year 2017 C-1 Meridian, Inc. C-1 Toscana, Inc. FRBH Toscana, LLC Freedom Miramar SM, Inc. Freedom Overlook Manor, LLC Freedom Regatta Bay, LLC HRTBH Arbors, LLC HRTBH Knolls, LLC HRTBH Wood Bridge, LLC HRTBH Wood Station, LLC SCHEDULE V-1 SCHEDULE V-2 SCHEDULE V-3 EXHIBIT A Form of Lock-Up up Agreement XXXXXXNovember [ ], XXXXXXXX & COMPANY2018 NexPoint Residential Trust, INCORPORATED XXXXXXXX INC. Inc. 000 Xxxxxxxx Xxxxx, Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x 000 Xxxxxx, Xxxxx 00000 Xxxxxxx Xxxxx & Associates, Inc. 000 Xxxxxxxx & CompanyXxxxxxx Xx. Xxxxxxxxxx, Incorporated Xxxxxxx 00000 Jefferies LLC 000 Xxxxxxx Xxxxxx Xxx Xxxxx XxxxxxXxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx Xxx Xxxx 00000 Re: Heartland ExpressNexPoint Residential Trust, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, ) - Restriction on Stock Sales Dear Sirs: This letter is delivered to you pursuant to the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) to be entered into by the Company, as issuer, NexPoint Real Estate Advisors, L.P. (the “Adviser”), on behalf and NexPoint Residential Trust Operating Partnership, L.P., (the “Operating Partnership”) and Xxxxxxx Xxxxx & Associates, Inc. and Xxxxxxxxx LLC, as the representatives (the “Representatives”) of certain underwriters (the “Underwriters”) to be named therein. Upon the terms and subject to the conditions of the several Underwriting Agreement, the Underwriters named intend to effect a public offering of Common Stock, par value $0.01 per share, of the Company (the “Shares”), as described in Schedule I and contemplated by the registration statement of the Company on Form S-3 (File No. 333-216697) (the “Registration Statement”), as filed with the Securities and Exchange Commission on March 14, 2017 and as amended by Amendment No. 1 thereto filed on April 24, 2017 (the “Offering”). The undersigned recognizes that it is in the best financial interests of the undersigned, as an officer or director, or an owner of stock, options, warrants or other securities of the Company (the “Company Securities”), that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or may be, subject to such certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as an inducement to the Underwriters to execute the Underwriting Agreement, the undersigned hereby acknowledges and agrees that the undersigned will not (i) offer, sell, contract to sell, pledge, grant any option to purchase or otherwise dispose of (collectively, a “Disposition”) any Company Securities, or any securities convertible into or exercisable or exchangeable for, or any rights to purchase or otherwise acquire, any Company Securities held by the undersigned or acquired by the undersigned after the date hereof, or that may be deemed to be beneficially owned by the undersigned (collectively, the “UnderwritersLock-Up Shares”), with pursuant to the Company Rules and Regulations promulgated under the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 Securities Act of 1933, as amended (the “Selling StockholderAct”), providing and the Securities Exchange Act of 1934, as amended, for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning commencing on the date hereof and ending on the date that is 90 60 days from after the date of the final prospectus relating Company’s Prospectus first filed pursuant to Rule 424(b) under the Public Offering Act, inclusive (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxxthe Representatives; provided, Xxxxxxxx & Companyhowever, Incorporated, the undersigned will that this provision shall not offer, sell, contract to sell, pledge, lend, grant restrict any option to purchase, make (x) open-end registered investment company from engaging in any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or transaction with respect to which Company Securities or (y) closed-end fund conducting periodic repurchases as required under Rule 23c-3 of the Investment Company Act of 1940, as amended, with respect to Company Securities; or (ii) exercise or seek to exercise or effectuate in any manner any rights of any nature that the undersigned has beneficial ownership within or may have hereafter to require the rules and regulations Company to register under the Act the undersigned’s sale, transfer or other disposition of any of the Securities and Exchange Commission (collectively Lock-Up Shares or other securities of the “Undersigned's Shares”)Company held by the undersigned, or to otherwise participate as a selling securityholder in any manner in any registration effected by the Company under the Act, including under the Registration Statement, during the Lock-Up Period. The foregoing restriction is restrictions are expressly agreed to preclude the undersigned from engaging in any hedging hedging, collar (whether or not for any consideration) or other transaction that is designed to result in, or that reasonably could be expected to lead toor result in a Disposition of Lock-Up Shares during the Lock-Up Period, a sale or disposition of the Undersigned’s Shares even if such Lock-Up Shares would be disposed of by someone other than the undersignedsuch holder. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call optionoption or reversal or cancellation thereof) with respect to any of the Undersigned’s Lock-Up Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from such Lock-Up Shares. In addition, Notwithstanding the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, agreement not to make any Disposition during the Lock-Up Period, make you have agreed that the foregoing restrictions shall not apply to (i) the Company Securities being offered in the prospectus included in the Registration Statement, (ii) any demand forvesting, settlement and tax withholding of equity-based awards outstanding on the date hereof and the Common Stock issued in connection with such vesting, settlement and tax withholding under the Company’s equity incentive plan or exercise any right other plan or agreement described in the Registration Statement, Time of Sale Information and the Prospectus, (iii) the entering into a written trading plan designed to comply with respect to, the registration Rule 10b5-1 of the Undersigned’s Shares. Notwithstanding the foregoingExchange Act, the undersigned may, provided that no sales are made pursuant to such trading plan during the Lock-Up Period, transfer provided that no filing or public announcement by any party under the Undersigned’s Shares Exchange Act or otherwise shall be required or shall be voluntarily made in connection with such trading plan, (iiv) if the undersigned is an individual, transfers as a bona fide gift or gifts gifts, (v) if the undersigned is an individual, transfers to a family member, trust, family limited partnership or family limited liability company for the direct or indirect benefit of the undersigned or his or her “immediate family” members as defined in Rule 16a-1 under the Exchange Act, (vi) transfers by will, other testamentary document testate or intestate succession succession, (vii) if the undersigned is a partnership, limited liability company, a corporation or trust, transfers to its limited partners, members, stockholders or beneficiaries as part of a distribution, or to any corporation, partnership or other entity that is its affiliate, (viii) to the legal representativeextent applicable, heirif the undersigned is an individual, beneficiary or a member of the immediate family of transfers to the undersigned’s employer, if required by the terms of such individual’s employment, (ix) transfers for bona fide tax planning purposes, (x) to the undersigned’s affiliates; or (xi) if the undersigned is a corporation, partnership or other entity, transfers to a wholly owned subsidiary of such entity, provided that in each transfer pursuant to clauses (iv)-(xi) the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust transferee agrees to be bound in writing by the restrictions set forth hereinterms of this Lock-Up Agreement prior to such transfer, and provided further that any such transfer shall not involve a disposition for valuevalue and no filing or public announcement by any party (donor, [or] (iiidonee, transferor or transferee) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer otherwise shall be required or shall be voluntarily made during in connection with such transfer (other than a filing on a Form 5 made after the expiration of the Lock-Up Period). For purposes It is understood that, if the Underwriting Agreement (other than the provisions thereof that survive termination) shall terminate or be terminated prior to payment for and delivery of the Shares, you will release the undersigned from the obligations under this letter agreement. In furtherance of the foregoing, the Company and its transfer agent and registrar are hereby authorized to decline to make any transfer of Lock-Up AgreementShares if such transfer would constitute a violation or breach of this letter. This letter shall be binding on the undersigned and the respective successors, “immediate family” shall mean any relationship by bloodheirs, marriage or adoption, not more remote than first cousin. As personal representatives and assigns of the date hereof, undersigned. Capitalized terms used but not defined herein have the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds respective meanings assigned to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined such terms in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).. Very truly yours,
Appears in 1 contract
Samples: Underwriting Agreement (NexPoint Residential Trust, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSADMA BIOLOGICS, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice Xxxxxxxx President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Underwriters Name Number ofFirm Firm Shares XxxxxxXxxxxxx Xxxxx & Associates, Inc. 1,324,616 Ladenburg Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Co. Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total567,692 TOTAL: 3,250,000 Schedule 1,892,308 SCHEDULE II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTDIssuer Free Writing Prospectus: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).None. Pricing Information:
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (aiv) the Underwriters’ Underwriter’s research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (bv) the Underwriters’ Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters Underwriter with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ Underwriter’s independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and acknowledges the Selling Stockholder acknowledge that each of the Underwriters Underwriter is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature Page Follows] Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Guarantor and the several UnderwritersUnderwriter. Very truly yours, HEARTLAND EXPRESS, AMERANT BANCORP INC. By: /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Xxxxxx Title: Trustee Vice Chairman and CEO 30 AMERANT FLORIDA BANCORP INC. By: /s/ Xxxxxx Xxxxxxxxxx Name: Xxxxxx Xxxxxxxxxx Title: Treasurer CONFIRMED AND ACCEPTED, as of the date first above mentioned. XXXXXXX XXXXX & ASSOCIATES, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Xxxx Xxxxx Name: Xxxx Xxxxx Title: Authorized Representative XXXXX FARGO SECURITIESSignatory SCHEDULE I [See attached] Sch. I 1 Filed pursuant to Rule 433 Registration File No. 333-238958 Supplementing the Preliminary Prospectus Supplement dated June 16, LLC By2020 (To Prospectus dated June 15, 2020) Amerant Bancorp Inc. Pricing Term Sheet June 16, 2020 $46,000,000 5.75% Senior Notes due 2025 Issuer: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Amerant Bancorp Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & ) Guarantor: Amerant Florida Bancorp Inc. Expected Ratings:* BBB- by Xxxxx Bond Rating Agency A- by Xxxx-Xxxxx Ratings Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder Partnership Parties acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the CompanyPartnerships, the value of the Common Stock Units and/or the offering that differ from the views of their respective investment banking divisions. The Company Partnership Parties hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder Partnership Parties by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge Partnership Parties acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [SIGNATURE PAGES FOLLOWS] Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Partnership Parties and the several Underwriters. Very truly yours, HEARTLAND EXPRESSCYPRESS ENERGY PARTNERS, INC. L.P. By: Cypress Energy Partners GP, LLC, its General Partner By: /s/ Xxxx X. Xxxxxxx G. Lxx Xxxxxx Name: Xxxx X. Xxxxxxx G. Lxx Xxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDERCYPRESS ENERGY PARTNERS GP, LLC By: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. G. Lxx Xxxxxx Name: Xxxxxxxx X. G. Lxx Xxxxxx Title: Trustee Vice President and Chief Financial Officer CYPRESS ENERGY HOLDINGS, LLC By: /s/ G. Lxx Xxxxxx Name: G. Lxx Xxxxxx Title: Chief Financial Officer CYPRESS ENERGY HOLDINGS II, LLC By: /s/ G. Lxx Xxxxxx Name: G. Lxx Xxxxxx Title: Chief Financial Officer, Vice Present, Secretary and Treasurer Signature Pages to Underwriting Agreement CYPRESS ENERGY PARTNERS – TIR, LLC By: /s/ G. Lxx Xxxxxx Name: G. Lxx Xxxxxx Title: Chief Financial Officer, Vice President, Secretary and Treasurer CYPRESS ENERGY PARTNERS, LLC By: /s/ G. Lxx Xxxxxx Name: G. Lxx Xxxxxx Title: Chief Financial Officer, Vice President, Secretary and Treasurer Signature Pages to Underwriting Agreement CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, INC. By: /s/ Bxxxx X. Xxxxxxx Name: Bxxxx X. Xxxxxxx Title: Managing Director RXXXXX X. XXXXX & CO. INCORPORATED By: /s/ Cxxxxx Xxxx Name: Cxxxxx Xxxx Title: Managing Director SXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Dxxxxx X. Xxxxxxx Authorized Representative XXXXXXXX INCName: Dxxxxx X. Xxxxxxx Title: Managing Director BMO CAPITAL MARKETS CORP. By: /s/ Txxxxx Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESName: Txxxxx Xxxxxxx Title: Director Signature Pages to Underwriting Agreement SCHEDULE I - UNDERWRITERS Name Firm Units Rxxxxxx Jxxxx & Associates, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx Inc. 1,687,500 Rxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx& Co. Incorporated 750,000 Sxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 750,000 BMO Capital Markets Corp. 187,500 Jxxxxx Mxxxxxxxxx Xxxxx Fargo LLC 187,500 Wxxxxxxxxx Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Inc. 187,500 Total: 3,250,000 3,750,000 Schedule I to Underwriting Agreement SCHEDULE II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information - TIME OF SALE INFORMATION Number of Firm SharesUnits: 3,250,000 Number of Additional Shares: 487,500 3,750,000 Public Offering Price: $23.75 20.00 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. LockUnit Schedule II to Underwriting Agreement SCHEDULE III – SIGNATORIES TO LOCK-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo SecuritiesUP LETTERS Cypress Energy Holdings, LLC BB&T Capital Markets, a division of BB&T SecuritiesCypress Energy Holdings II, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. Cypress Energy Partners - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo SecuritiesTIR, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Pxxxx X. Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).III
Appears in 1 contract
Samples: Cypress Energy Partners, L.P.
Research Analyst Independence. The Company and acknowledges that the Selling Stockholder acknowledge that (a) the Underwriters’ Placement Agent’s research analysts and research departments are required to be independent from their respective its investment banking divisions division and are subject to certain regulations and internal policies policies, and (b) that the Underwriters’ Placement Agent’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisionsdivision. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters Placement Agent with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ its independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or by the Selling Stockholder by any Underwriter’s Placement Agent investment banking division. The Company and acknowledges that the Selling Stockholder acknowledge that each of the Underwriters Placement Agent is a full service securities firm and as such, such from time to time, subject to applicable securities laws, rules and regulations, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies Company; provided, however, that are nothing in this Section 21 shall relieve the subject Placement Agent of the transactions contemplated by this Agreementany responsibility or liability it may otherwise bear in connection with activities in violation of applicable securities laws, rules or regulations. Please confirm that If the foregoing correctly sets forth is in accordance with your understanding of the agreement between the Company, the Selling Stockholder Company and the several UnderwritersPlacement Agent, kindly indicate your acceptance in the space provided for that purpose below. Very truly yours, HEARTLAND EXPRESS, INC. /s/ Xxxx X. Xxxxxxx CAPSTONE TURBINE CORPORATION By: Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED Accepted as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED Bywritten: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LAZARD CAPITAL MARKETS LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC ByName: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 TotalTitle: 3,250,000 Schedule II SCHEDULE A General Use Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number None. SCHEDULE B List of Firm Shares: 3,250,000 Number executive officers and directors subject to Section 5 Xxxxxxx Xxxxxxxx Xxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxx Xxxxx Xxxx Xxxx Xxxxx Xxxxxxx Xxxx Xxxxx Xxxxx Xxx Xxxxxxx Xxxxxxx Xxxx Xxx Xxxxxx Xxxx Xxxxxxxx Xx Xxxxx Xxxxx Xxxxxx EXHIBIT A Form of Additional Shares: 487,500 Public Offering Price: $23.75 per share Subscription Agreement EXHIBIT B Form of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Warrant EXHIBIT C Form of Lock Up Agreement XXXXXXFebruary 29, XXXXXXXX & COMPANY2012 LAZARD CAPITAL MARKETS LLC 00 Xxxxxxxxxxx Xxxxx Xxx Xxxx, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx Xxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies Capstone Turbine Corporation offering of 22,500,000 Units and GentlemenAdditional Shares Dear Sirs: The undersigned, an officer and/or director of Heartland Express, Inc.In order to induce Lazard Capital Markets LLC (“Lazard”) to enter into a certain placement agent agreement with Capstone Turbine Corporation, a Nevada Delaware corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, with respect to the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares units consisting of the Company’s Common Stock, par value $0.01 0.001 per share (the “Common Stock”), or any options or warrants to purchase any shares of the Common Stock (collectively, with the Common Stock, or any securities convertible intothe “Units”) and, exchangeable for or that represent pursuant to the right to receive Company’s put option, certain additional shares of Common Stockcommon stock of the Company, whether now owned or hereinafter acquired, owned directly the undersigned hereby agrees that for (1) a period of ninety (90) days following the date of the final prospectus supplement filed by the undersigned (including holding as a custodian) or Company with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission in connection with the Offering, and (collectively 2) a period of ninety (90) days following the Company’s delivery of an Additional Shares Exercise Notice (as defined in the Subscription Agreement between the Company and the investor(s), dated the date hereof), in each case, the “Undersigned's Shareslock-up period”). The foregoing restriction is expressly agreed , relating to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant exercise of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In additionAdditional Purchase Rights (as defined in the Subscription Agreement), the undersigned agrees thatwill not, without the prior written consent of XxxxxxLazard, Xxxxxxxx & Companydirectly or indirectly, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift offer, sell, assign, transfer, pledge, contract to sell, or gifts otherwise dispose of, any shares of Common Stock or by willsecurities convertible into or exercisable or exchangeable for Common Stock (including, other testamentary document without limitation, shares of Common Stock or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree any such securities which may be deemed to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are beneficially owned by the undersigned or in accordance with the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 rules and regulations promulgated under the Securities Act of 1933, as the same may be amended or supplemented from time to time (such shares or securities, the “Securities ActBeneficially Owned Shares”)), provided (ii) enter into any swap, hedge or other agreement or arrangement that transfers in whole or in part, the entity agrees to be bound in writing by the restrictions set forth hereineconomic risk of ownership of any Beneficially Owned Shares, [Common Stock or securities convertible into or exercisable or exchangeable for Common Stock, or (iviii) engage in any short selling of any Beneficially Owned Shares, Common Stock or securities convertible into or exercisable or exchangeable for Common Stock. Notwithstanding the foregoing, nothing contained herein will be deemed to restrict or prohibit (i) the transfer of Beneficially Owned Shares as a member of the undersigned’s immediate familybona fide gift, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall the donees, distributees or transferees thereof agree in writing to be a condition of transfers pursuant to clauses (i), bound by the terms hereof or (ii) the selling by the undersigned of the number of Beneficially Owned Shares necessary to fund the withholding taxes due upon vesting of restricted stock units. If (i) the Company issues an earnings release or material news or a material event relating to the Company occurs during the last seventeen (17) days of the lock-up period, or (iiiii) above that such transfers are not required prior to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 expiration of the Securities Exchange Act lock-up period, the Company announces that it will release earnings results during the sixteen (16)-day period beginning on the last day of 1934the lock-up period, as amended the restrictions imposed by this Agreement shall continue to apply until the expiration of the eighteen (18)-day period beginning on the “Exchange Act”)issuance of the earnings release or the occurrence of the material news or material event. Anything contained herein to the contrary notwithstanding, and no other public filing any person to whom shares of Common Stock, securities convertible into or report regarding such transfer exercisable or exchangeable for Common Stock or Beneficially Owned Shares are transferred from the undersigned shall be required or shall be voluntarily made during bound by the Lock-Up Period. For purposes terms of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose hereby waives, from the date hereof through the ninetieth (90th) day following the date of the UndersignedCompany’s Shares for final prospectus, any and all rights, if any, to request or demand registration pursuant to the purpose Securities Act of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned 1933, as a result of the vesting, during the Lock-Up Periodamended, of restricted any shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed or securities convertible into or exercisable or exchangeable for Common Stock that are registered in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount name of the Undersigned’s Shares undersigned or that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if are Beneficially Owned Shares. In order to enable the undersigned is required aforesaid covenants to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or dispositionbe enforced, the undersigned shall include a statement in such report hereby consents to the effect that placing of legends and/or stop transfer orders with the purpose of such sale or other disposition was to cover tax obligations transfer agent of the undersigned in connection Common Stock with the vesting of the undersigned’s restricted respect to any shares of Common Stock.]2 1NTDStock, securities convertible into or exercisable or exchangeable for Common Stock or Beneficially Owned Shares. Name: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Title:
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder Operating Company acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Operating Company hereby waive and release, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the Selling Stockholder Operating Company by any Underwriter’s investment banking division. The Company and the Selling Stockholder Operating Company acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature page follows.] Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Operating Company, the Manager and the several Underwriters. Very truly yours, HEARTLAND EXPRESSJXXXXXXX CAPITAL, INC. By: /s/ Xxxx X. Xxxxxxx Dxxx Xxxxxxxx Name: Xxxx X. Xxxxxxx Dxxx Xxxxxxxx Title: Chief Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDERJXXXXXXX CAPITAL OPERATING COMPANY, LLC By: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 Jxxxxxxx Capital, Inc., its managing member By: /s/ Dxxx Xxxxxxxx X. Xxxxxx Name: Dxxx Xxxxxxxx X. Xxxxxx Title: Trustee Chief Executive Officer JCAP ADVISORS, LLC By: /s/ Dxxx Xxxxxxxx Name: Dxxx Xxxxxxxx Title: Chief Executive Officer CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Jxxxx Xxxxx Authorized Representative XXXXX FARGO SECURITIES, JXXXXXXXX LLC By: /s/ Xxxxx Jxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T KEYBANC CAPITAL MARKETS, a division of BB&T SECURITIES, LLC MARKETS INC. By: /s/ Xxxxxxx X. Xxxxx Pxxx Xxxxxxxxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Firm Shares XxxxxxRxxxxxx Jxxxx & Associates, Xxxxxxxx Inc. 1,312,500 Jxxxxxxxx LLC 875,000 KeyBanc Capital Markets Inc. 612,500 Rxxxxx X. Xxxxx & Company, Co. Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T 525,000 FBR Capital Markets, a division of BB&T Securities, LLC 650,000 Markets & Co. 175,000 Total: 3,250,000 Schedule II 3,500,000 Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Prospectus None. SCHEDULE II-2 Pricing Information Number of Firm Shares: 3,250,000 3,500,000 Number of Additional Shares: 487,500 525,000 Public Offering PricePrice per Share: $23.75 22.00 Discount per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Share: 5.00% SCHEDULE III Persons Subject to Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securitiesup JCAP Advisors, LLC BB&T Capital Markets, a division of BB&T SecuritiesDxxx Xxxxxxxx Mxxx X. Xxxxxx Hxxxxx X. Silver Hxxxx X. Xxxx W1 Capital, LLC As Representatives of the Several Underwriters x/x XxxxxxJxxx X. Good Jxxxx Xxxxxxx Kxxxx X. Xxxxxxxx Highland Capital Management Fund Advisors, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo SecuritiesL.P. NexPoint Real Estate Capital, LLC and BB&T Capital MarketsNexPoint Real Estate Opportunities, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).LLC
Appears in 1 contract
Research Analyst Independence. The Company and each of the Selling Stockholder Stockholders acknowledge that (a) the Underwriters’ Underwriter’s research analysts and research departments are required to be independent from their respective its investment banking divisions division and are is subject to certain regulations and internal policies policies, and (b) the Underwriters’ Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Stock, and/or the offering that differ from the views of their respective its investment banking divisionsdivision. The Company and the Selling Stockholder Stockholders, severally and not jointly, hereby waive and release, to the fullest extent permitted by law, any claims that they may have against the Underwriters Underwriter with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ Underwriter’s independent research analysts and research departments department may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder Stockholders by any the Underwriter’s investment banking division. The Company and the Selling Stockholder Stockholders acknowledge that each of the Underwriters Underwriter is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Stockholders, and the several UnderwritersUnderwriter. Very truly yours, HEARTLAND EXPRESS, INC. CAROLINA FINANCIAL CORPORATION By: /s/ Xxxx Jxxxxx X. Xxxxxxx Name: Xxxx Jxxxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Executive Officer THE SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 STOCKHOLDERS named in Schedule I hereto, acting separately /s/ Xxxxxxxx Jxxxxx X. Xxxxxxx Jxxxxx X. Xxxxxxx /s/ Wxxxxxx X. Xxxxxx Name: Xxxxxxxx III Wxxxxxx X. Xxxxxx Title: Trustee III /s/ Jxxxxx X. Xxxxxxx Jxxxxx X. Xxxxxxx, as attorney-in-fact acting on behalf of the other Selling Stockholders named in Schedule I hereto, acting separately CONFIRMED AND ACCEPTED as of the date first above mentionedwritten: RXXXXXX JXXXX & ASSOCIATES, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Dxxxxxx X. Xxxxxx Name: Dxxxxxx X. Xxxxxx Title: Managing Director SCHEDULE I Schedule of Selling Stockholders Name No. of Firm Secondary Shares National Financial Services, LLC FBO Jxxxxx X. Xxxxxxx 33,600 Jxxxxx X. Xxxxxxx 15,000 Dxxxx X. Xxxxxx 25,000 Wxxxxxx X. Xxxxxx, III 10,000 Jxxxxxx X. Deal, M.D. 9,000 Fxxxxx Wxxxxxxx 3,750 Total 96,350 SCHEDULE II Issuer Free Writing Prospectus None. SCHEDULE III Persons Subject to Lock-up Bxxxxxx Xxxxxx W. Sxxxx Xxxxxxx Rxxxxx X. Xxxxxxx, Xx Rxxxxx X. Xxxxx, CPA Jxxxxxx X. Deal, M.D. Gxxx X. Xxxxxxx Dxxxx X. Xxxxxx Mxxxxxx X. Xxxxx Dxxxxx X. Xxxxx, Xx. Jxxxxx X. Xxxxxxx Txxxxxxx E. Xxxxxx Fxxxxxxxx X. Xxxxxxxx Cxxxxxxx X. Xxxxx XX Lxxxxxx X. Xxxxx M. X. Xxxxxxx, III Fxxxxx Wxxxxxxx Xxxxxxx A. Xxxxxx, III EXHIBIT A Form of Lock-up Agreement June 6, 2018 CAROLINA FINANCIAL CORPORATION 200 Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESXxxxxxxxxx, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETSXxxxxxxx 00000 RXXXXXX JXXXX & ASSOCIATES, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities800 Xxxxxxxx Xxxxxxx Xx. Xxxxxxxxxx, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation Carolina Financial Corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, ) - Restriction on Stock Sales Dear Sirs: This letter is delivered to the “Representatives”) propose Underwriter pursuant to enter into an the Underwriting Agreement (the “Underwriting Agreement”) to be entered into by the Company, as issuer, Rxxxxxx Jxxxx & Associates, Inc. (the “Underwriter”), on behalf and any selling stockholders party thereto. Upon the terms and subject to the conditions of the several Underwriters named Underwriting Agreement, the Underwriter intends to effect a public offering of Common Stock, par value $0.01 per share, of the Company (the “Shares”), as described in Schedule I and contemplated by the registration statement of the Company on Form S-3, File No. 333-222550 (the “Registration Statement”), as filed with the Securities and Exchange Commission on January 12, 2018 (the “Offering”). The undersigned recognizes that it is in the best financial interests of the undersigned, as an officer or director, or an owner of stock, options, rights, warrants or other securities of the Company (the “Company Securities”), that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or may be, subject to such certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriter that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as an inducement to the Underwriter to execute the Underwriting Agreement, the undersigned hereby acknowledges and agrees that the undersigned will not (i) offer, sell, contract to sell, pledge, grant any option to purchase or otherwise dispose of (collectively, a “Disposition”) any Company Securities, or any securities convertible into or exercisable or exchangeable for, or any rights to purchase or otherwise acquire, any Company Securities held by the undersigned or acquired by the undersigned after the date hereof, or that may be deemed to be beneficially owned by the undersigned (collectively, the “UnderwritersLock-Up Shares”), with pursuant to the Company rules and regulations promulgated under the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 Securities Act of 1933, as amended (the “Selling StockholderAct”), providing and the Securities Exchange Act of 1934, as amended, for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning commencing on the date hereof and ending on the date that is 90 60 days from after the date of the final prospectus relating Company’s Prospectus first filed pursuant to Rule 424(b) under the Public Offering Act, inclusive (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract Underwriter or (ii) exercise or seek to sell, pledge, lend, grant exercise or effectuate in any option to purchase, make manner any short sale or otherwise dispose rights of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or nature that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within or may have hereafter to require the rules and regulations Company to register under the Act the undersigned’s sale, transfer or other disposition of any of the Securities and Exchange Commission Lock-Up Shares or other securities of the Company held by the undersigned, or to otherwise participate as a selling securityholder in any manner in any registration effected by the Company under the Act, including under the Registration Statement, during the Lock-Up Period, notwithstanding the foregoing, if (collectively x) during the “Undersigned's Shares”)last 17 days of the Lock-Up Period, the company issues a release concerning earnings or material news or a material event relating to the company occurs; or (y) prior to the expiration of the Lock-Up Period, the company announces it will release earnings results during the 16 day period beginning on the last day of the Lock-Up Period; the restrictions imposed in this letter agreement shall continue to apply until the expiration of the 18 day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The foregoing restriction is restrictions are expressly agreed to preclude the undersigned from engaging in any hedging hedging, collar (whether or not for any consideration) or other transaction that is designed to result in, or that reasonably could be expected to lead toor result in a Disposition of Lock-Up Shares during the Lock-Up Period, a sale or disposition of the Undersigned’s Shares even if such Lock-Up Shares would be disposed of by someone other than the undersignedsuch holder. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call optionoption or reversal or cancellation thereof) with respect to any of the Undersigned’s Lock-Up Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge company acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSFEDERATED NATIONAL HOLDING COMPANY /s/ Pxxxx X. Prygelski, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and III Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Dxxxxxx X. Xxxxxx Authorized Representative XXXXX FARGO SECURITIESSCHEDULE I Number Name Firm Shares Rxxxxxx Jxxxx & Associates, LLC By: /s/ Inc. 1,333,334 Wxxxxxx Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 L.L.C. 512,821 Jxxxxx Mxxxxxxxxx Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 205,128 Total: 3,250,000 Schedule 2,051,283 SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressProspectus Free Writing Prospectus filed July 29, Inc. 2014 SCHEDULE III Persons Subject to Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. up Mxxxxxx X. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Pxxxx X. Prygelski Bxxxx X. Xxxxxxx Rxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx Xx. Cxxx Xxxx Jxxxxxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form Xxxxxxxxx SCHEDULE IV Form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Counsel Opinion
Appears in 1 contract
Samples: Underwriting Agreement (Federated National Holding Co)
Research Analyst Independence. The Company and acknowledges that the Selling Stockholder acknowledge that (a) the UnderwritersPlacement Agents’ research analysts and research departments are required to be independent from their respective its investment banking divisions division and are subject to certain regulations and internal policies policies, and (b) that the UnderwritersPlacement Agents’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisionsdivision. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters any Placement Agent with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ its independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or by the Selling Stockholder by any Underwriter’s Placement Agents’ investment banking division. The Company and acknowledges that the Selling Stockholder acknowledge that each of the Underwriters Placement Agents is a full service securities firm and as such, such from time to time, subject to applicable securities laws, rules and regulations, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies Company; provided, however, that are nothing in this Section 21 shall relieve the subject Placement Agents of any responsibility or liability it may otherwise bear in connection with activities in violation of applicable securities laws, rules or regulations. Effectiveness of this Agreement; Counterparts . This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument and such signatures may be delivered by facsimile or PDF format via email. BUS_RE/5817412.1 If the foregoing is in accordance with your understanding of the transactions contemplated by this Agreement. Please confirm that agreement among the foregoing correctly sets forth the agreement between the Company, the Selling Stockholder Company and the several UnderwritersPlacement Agents, kindly indicate your acceptance in the space provided for that purpose below. Very truly yours, HEARTLAND EXPRESSUQM TECHNOLOGIES, INC. By: /s/ Xxxx Xxxxx X. Xxxxxxx Xxxxxxxxx Name: Xxxx X. Xxxxxxx Xxxxx Xxxxxxxxx Title: Executive Vice President of Finance Treasurer, Secretary and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED Accepted as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I heretowritten: XXXXXXXXXXX & CO. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxx Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESName: Xxxx Xxxxxxx Title: Managing Director – Investment Banking X.X. XXXXXXXXXX & CO., LLC By: /s/ Xxxxx Xxxxxx Authorized Representative X. Xxxxxxx Name: Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC ByX. Xxxxxxx Title: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II BUS_RE/5817412.1 SCHEDULE A General Use Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number None. BUS_RE/5817412.1 SCHEDULE B List of Firm Sharesofficers and directors subject to Section 5 Directors: 3,250,000 Number Xxxxxx X. Xxxxxxxxxxxxx Xxxxxxx X. Xxx Xxxxxx X. Xxxxxxxxx Xxxx X. Xxxxxxxx Officers: Xxxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxxxx Xxxx X. Xxx BUS_RE/5817412.1 EXHIBIT A Form of Additional Shares: 487,500 Public Offering Price: $23.75 per share Subscription Agreement (See Exhibit 10.1 to Form 8-K) BUS_RE/5817412.1 EXHIBIT B Form of Common Stock Warrant (See Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. 4.1 to Form 8-K) BUS_RE/5817412.1 EXHIBIT D Form of Lock-Up Agreement XXXXXXOctober [__], XXXXXXXX 2015 Xxxxxxxxxxx & COMPANYCo. Inc. 00 Xxxxx Xxxxxx Xxx Xxxx, INCORPORATED XXXXXXXX INC. Xxxxx Fargo SecuritiesXX 00000 X.X. Xxxxxxxxxx & Co. LLC 000 Xxxx Xxxxxx Xxx Xxxx, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx XX 00000 Re:Xxxxxxxxxxx & Co. Inc. Dear Sirs: Heartland ExpressIn order to induce Xxxxxxxxxxx & Co. LLC (“Oppenheimer”) and Xxxxxx & Xxxxxxx a unit of X.X. Xxxxxxxxxx & Co. (“Xxxxxxxxxx” and collectively with Oppenheimer the “Placement Agents”), Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Expressto enter in to a certain placement agent agreement with UQM Technologies, Inc., a Nevada Colorado corporation (the “Company”), or with respect to the offering of, up to an aggregate of [______] units, with each Unit consisting of (i) one share of its subsidiariescommon stock (each a “Share”), understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement $0.01 par value per share (the “Underwriting AgreementCommon Stock”), on behalf ) of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for ii) one warrant to purchase [__] of a public offering (the “Public Offering”) share of Shares (as defined in the Underwriting Agreement). In consideration Common Stock of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, Company the undersigned hereby agrees that, that during the period beginning on the date hereof through and ending on including the date that is 90 days from the 90th day after the date of the final prospectus relating to the Public Offering Placement Agent Agreement (the “Lock-Up Period”), the undersigned agrees thatwill not, without the prior written consent of XxxxxxXxxxxxxxxxx, Xxxxxxxx & Companydirectly or indirectly, Incorporated, the undersigned will not (i) offer, sell, assign, transfer, pledge, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”)of, or any options or warrants announce the intention to purchase otherwise dispose of, any shares of Common Stock (including, without limitation, Common Stock which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations promulgated under the Securities Act of 1933, as the same may be amended or supplemented from time to time (such shares, the “Beneficially Owned Shares”)) or securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap, hedge or any similar agreement or arrangement that transfers in whole or in part, the economic risk of ownership of the Beneficially Owned Shares or securities convertible into, into or exercisable or exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly hereafter acquired by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within or hereafter acquires the rules and regulations power of disposition, or (iii) engage in any short selling of the Securities and Exchange Commission Common Stock or securities convertible into or exercisable or exchangeable for Common Stock. If (collectively i) the “Undersigned's Shares”). The foregoing restriction is expressly agreed Company issues an earnings release or material news or a material event relating to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition Company occurs during the last 17 days of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, (ii) prior to the registration expiration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the Lock-Up Period shall be extended and the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the BUS_RE/5817412.1 occurrence of the material news or material event, except that such extension will not apply if, (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to Common Stock is an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members “actively traded security” (as defined in Section A.1(a)(5) of the General Instructions S-8 Regulation M under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), (ii) the Company meets the applicable requirements of Rule 139(a)(1) under the Securities Act in the manner contemplated by NASD Conduct Rule 2711(f)(4) and no other public filing (iii) the provisions of NASD Conduct Rule 2711(f)(4) do not restrict the publication or report regarding such transfer shall be required or shall be voluntarily made distribution, by the Underwriter, of any research reports relating to the Company during the Lock-Up Period. For purposes 15 days before or after the last day of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of (before giving effect to such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments extension). The restrictions set forth in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).immediately preceding paragraph shall not apply to:
Appears in 1 contract
Samples: Uqm Technologies Inc
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSLEAP THERAPEUTICS, INC. /s/ Xxxx Xxxxxxxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice Xxxxxxxxx President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC Name: Xx Xxxxxx Title: Managing Director LADENBURG XXXXXXXX & CO. INC. By: /s/ Xxxxx Xxxxxx Authorized Representative Name: Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC ByTitle: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm of Firm Shares XxxxxxNumber of Firm Warrants Xxxxxxx Xxxxx & Associates, Inc. 3,942,857 3,942,857 Ladenburg Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Co. Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 2,628,571 2,628,571 Total: 3,250,000 Schedule 6,571,428 6,571,428 SCHEDULE II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Price per Firm Share and accompanying Firm Warrant to the public: $1.75 Price per Firm Share and accompanying Firm Warrant to the Underwriters: $1.645 Number of Firm Shares: 3,250,000 6,571,428 Number of Firm Warrants: 6,571,428 Price per Additional Shares: 487,500 Public Offering PriceShare: $23.75 1.6356 Price per share Additional Warrant: $0.0094 SCHEDULE III Persons Subject to Lock-up Xxxxxxxxxxx Xxxxxxxxx Xxxxxxx Xxxx Xxxxxxxxx Xxxxxx Xxxxx Xxxxxxxxx Xxxxxx Xxxxx Xxxxxxx Xx Xxxx Xxxxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxxx HealthCare Ventures VIII, L.P. HealthCare Strategic Fund, L.P. HealthCare Ventures IX, L.P. EXHIBIT A Form of Warrant 37 [FORM OF WARRANT] LEAP THERAPEUTICS, INC. WARRANT TO PURCHASE COMMON STOCK Warrant No.: Number of Shares of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressStock: Date of Issuance: [ ], Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets2019 (“Issuance Date”) Leap Therapeutics, a division company organized under the laws of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation Delaware (the “Company”), or one of its subsidiarieshereby certifies that, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration consideration, the receipt and sufficiency of which is are hereby acknowledged, [HOLDER], the undersigned agrees that, during the period beginning on the date registered holder hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering or its permitted assigns (the “Lock-Up PeriodHolder”), is entitled, subject to the undersigned agrees thatterms set forth below, without to purchase from the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, at the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members Exercise Price (as defined in Section A.1(a)(51(b) of below) then in effect, at any time or times on or after the General Instructions S-8 under the Securities Act of 1933, as amended Issuance Date (the “Securities ActExercisability Date”), but not after 11:59 p.m., New York time, on the Expiration Date, (as defined in Section 16 below), ( )(1) fully paid non-assessable shares of Common Stock (as defined in Section 16 below), subject to adjustment as provided that herein (the entity agrees “Warrant Shares”). Except as otherwise defined herein, capitalized terms in this Warrant to be bound Purchase Common Stock (including any Warrants to Purchase Common Stock issued in writing by exchange, transfer or replacement hereof, this “Warrant”), shall have the restrictions meanings set forth herein, [or (iv) to a member in Section 16. This Warrant is one of the undersigned’s immediate family, provided that Warrants to Purchase Common Stock (the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers “Warrants”) issued pursuant to clauses (i)) that certain Underwriting Agreement, dated as of [ ], 2019 (the “Subscription Date”) by and among the Company and Xxxxxxx Xxxxx & Associates, Inc. and Ladenburg Xxxxxxxx & Co. Inc., (ii) or the Company’s Registration Statement on Form S-3 (iiiFile number 333-223419) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange ActRegistration Statement”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during (iii) the Lock-Up Period. For purposes Company’s prospectus supplement dated as of this Lock-Up Agreement[ ], “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii)2019.
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, PLX PHARMA INC. /s/ Xxxx X. Xxxxxxx By: Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee Title CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Number Name Number ofFirm Firm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Prospectus SCHEDULE III Persons Subject to Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).up
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder Operating Partnership acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Operating Partnership hereby waive and release, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the Selling Stockholder Operating Partnership by any Underwriter’s investment banking division. The Company and the Selling Stockholder Operating Partnership acknowledge that each of the Underwriters is a full full-service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature page follows.] Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Operating Partnership, the Manager and the several Underwriters. Very truly yours, HEARTLAND EXPRESSNEXPOINT REAL ESTATE FINANCE, INC. By: /s/ Xxxx X. Xxxxxxx Xxxxx Xxxxx Name: Xxxx X. Xxxxxxx Xxxxx Xxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDEROfficer, Executive VP-Finance, Secretary and Treasurer NEXPOINT REAL ESTATE FINANCE OPERATING PARTNERSHIP, L.P. By: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Xxxxx Xxxxx Name: Xxxxxxxx X. Xxxxxx Xxxxx Xxxxx Title: Trustee Chief Financial Officer, Executive VP-Finance, Secretary and Treasurer NEXPOINT REAL ESTATE ADVISORS VII, L.P. By: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Chief Financial Officer, Executive VP-Finance, Secretary and Treasurer Signature Page to Underwriting Agreement of NexPoint Real Estate Finance, Inc. CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Jozsi Popper Authorized Representative XXXXX FARGO SECURITIESSignature Page to Underwriting Agreement of NexPoint Real Estate Finance, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule Inc. SCHEDULE I Name Number ofFirm Shares XxxxxxPrincipal Amount of Notes to be Purchase Xxxxxxx Xxxxx & Associates, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 $ 60,000,000 Total: 3,250,000 Schedule II SCHEDULE II-1 Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation Term Sheet (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in attached hereto as Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting AgreementII-2). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx SCHEDULE II-2 [TERM SHEET] SCHEDULE III-1 [FORM OF OPINION OF WINSTON & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx XXXXXX LLP] SCHEDULE III-2 [FORM OF TAX OPINION OF WINSTON & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [orXXXXXX LLP] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).SCHEDULE III-3
Appears in 1 contract
Samples: Underwriting Agreement (NexPoint Real Estate Finance, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSADMA BIOLOGICS, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxxxxxx Xxxx X. Xxxxxxx Title: Executive Vice Xxxxxxxx President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx X Xxxxxx Authorized Representative XXXXX FARGO SECURITIESXxxxxx X Xxxxxx VP, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule XXXX Equity Syndicate SCHEDULE I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”)Xxxxxxx Xxxxx & Associates, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx Inc. 8,391,608 Cantor Xxxxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Co. 6,293,706 Mizuho Securities and Exchange Commission (collectively the “Undersigned's Shares”)USA LLC 6,293,706 Total 20,979,020 SCHEDULE II Issuer Free Writing Prospectus None. The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).SCHEDULE III
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ each Underwriter’s research analysts and research departments departments, if any, are required to be independent from their respective its investment banking divisions division and are subject to certain regulations and internal policies policies, and (b) the Underwriters’ that such Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering Offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder hereby waive and release, to the fullest extent permitted by law, any claims that they may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters Underwriter is a full service securities firm and as such, such from time to time, subject to applicable securities laws, rules and regulations, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies Company; provided, however, that are nothing in this Section 9.9 shall relieve the subject Underwriter of the transactions contemplated by this Agreementany responsibility or liability it may otherwise bear in connection with activities in violation of applicable securities laws, rules or regulations. Please confirm that If the foregoing correctly sets forth the agreement understanding between the Underwriters and the Company, please so indicate in the Selling Stockholder and the several Underwritersspace provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. Very truly yours, HEARTLAND EXPRESSHARBOR CUSTOM DEVELOPMENT, INC. /s/ Xxxx X. Xxxxxxx By: Name: Xxxx X. Sxxxxxxx Xxxxxxx Title: Chief Executive Vice President Officer, President, and Chairman of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED the Board of Directors Confirmed as of the date first written above mentioned, on behalf of itself and as Representative of the Representatives and the other several Underwriters named in on Schedule I 1 hereto. XXXXXX: ThinkEquity A division of Fordham Financial Management, XXXXXXXX & COMPANY, INCORPORATED Inc. By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. ByName: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESExxx Xxxx Title: Head of Investment Banking [Signature Page] Harbor Custom Development, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETSInc. – Underwriting Agreement 39 SCHEDULE 1 Underwriter Total Number of Firm Shares to be Purchased Total Number of Firm Warrants to be Purchased Number of Option Shares to be Purchased if the Over- Allotment Option is Fully Exercised Number of Option Warrants to be Purchased if the Over-Allotment Option is Fully Exercised ThinkEquity, a division of BB&T SECURITIESFordham Financial Management, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx TOTAL Sch. 1-1 SCHEDULE 2-A Pricing Information Number of Firm Shares: 3,250,000 [●] Number of Additional Firm Warrants: [●] Number of Option Shares: 487,500 [●] Number of Option Warrants: [●] Public Offering PricePrice per one Firm Share and three Firm Warrants: $23.75 [●] Underwriting Discount per share one Share and three Warrants: $[●] ($[●] per Share and $[●] per Warrant) Proceeds to Company per one Share and three Warrants (before expenses): $[●] SCHEDULE 2-B Issuer General Use Free Writing Prospectuses SCHEDULE 2-C Written Testing-the-Waters Communications None. Sch. 2-1 SCHEDULE 3 List of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Parties Sxxxxxxx Xxxxxxx Lxxxx Xxxxxxx Rxxxxxx Xxxxxxxxx Axxxx Xxxxx Jxxxxxx Xxxxxxxxxxx Rxxx Xxxxxx Lxxxx Xxxxx Wxxxx Xxxxxx Dxxxxx Xxxx The Gxxxxxx Investment Trust Sch. 3-1 EXHIBIT A-1 Form of Underwriter’s Warrant Agreement XXXXXX(8.0% Cumulative Convertible Series A Preferred Stock) THE REGISTERED HOLDER OF THIS UNDERWRITER’S WARRANT BY ITS ACCEPTANCE HEREOF, XXXXXXXX & AGREES THAT THIS UNDERWRITER’S WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED, OR BE THE SUBJECT OF ANY HEDGING, SHORT SALE, DERIVATIVE, PUT, OR CALL TRANSACTION THAT WOULD RESULT IN THE EFFECTIVE ECONOMIC DISPOSITION OF SUCH SECURITIES BY ANY PERSON FOR A PERIOD OF ONE HUNDRED AND EIGHTY (180) DAYS IMMEDIATELY FOLLOWING THE DATE OF EFFECTIVENESS OF THE PUBLIC OFFERING OF THE COMPANY’S SECURITIES PURSUANT TO REGISTRATION STATEMENT NO. 333-255229 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION, INCORPORATED XXXXXXXX EXCEPT IN ACCORDANCE WITH FINRA RULE 5110(e)(2). THIS UNDERWRITER’S WARRANT IS NOT EXERCISABLE PRIOR TO [________________]1. VOID AFTER 5:00 P.M., EASTERN TIME, [___________________]2. UNDERWRITER’S WARRANT TO PURCHASE 8.0% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK HARBOR CUSTOM DEVELOPMENT, INC. Xxxxx Fargo SecuritiesWarrant Shares: [_______]3 Initial Exercise Date: [______] 2021 THIS UNDERWRITER’S WARRANT TO PURCHASE 8.0% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK (the “Underwriter’s Warrant”) certifies that, LLC BB&T Capital Marketsfor value received, ThinkEquity, a division of BB&T SecuritiesFordham Financial Management, LLC As Representatives of Inc., or its assigns (the Several Underwriters x/x Xxxxxx“Holder”), Xxxxxxxx & Companyis entitled, Incorporated Xxx Xxxxx Xxxxxxupon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, 00xx Xxxxx Xxxxxxxxxat any time on or after ____, Xxxxxxxx 00000 Re: Heartland Express2021 (the “Initial Exercise Date”) and, Inc. - Lock-Up Agreement Ladies in accordance with FINRA Rule 5110(g)(8)(A), prior to at 5:00 p.m. (New York time) on the date that is five (5) years following the Effective Date (the “Termination Date”) but not thereafter, to subscribe for and Gentlemen: The undersigned, an officer and/or director of Heartland Expresspurchase from Harbor Custom Development, Inc., a Nevada Washington corporation (the “Company”), or one up to ______ shares of its subsidiaries8.0% Series A Cumulative Convertible Preferred Stock, understands that Xxxxxxno par value per share, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement Company (the “Underwriting AgreementWarrant Shares”), on behalf as subject to adjustment hereunder. The purchase price of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) one share of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating 8.0% Series A Cumulative Convertible Preferred Stock under this Underwriter’s Warrant shall be equal to the Public Offering (the “Lock-Up Period”)Exercise Price, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) 2(b). 1 Date that is 180 days from the Effective Date of the General Instructions S-8 under Registration Statement 2 Date that is five (5) years from the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member Effective Date of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] Registration Statement 3 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 % of the Securities Exchange Act number of 1934, Series A Preferred Stock sold as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate familyFirm Shares” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii)Offering.
Appears in 1 contract
Samples: Underwriting Agreement (Harbor Custom Development, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSAvenue Therapeutics, INC. /s/ Xxxx X. Xxxxxxx Inc. Name: Xxxx X. Xxxxxxx Title: Executive Vice Xx President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESSCHEDULE I Number Name Firm Shares Xxxxxxx Xxxxx & Associates, LLC ByInc. National Securities Corp. Total: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ SCHEDULE II Issuer Free Writing Prospectus SCHEDULE III Persons Subject to Lock-up Xxxx Xx Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxxxxxx Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, X. Xxxxx Xxxxx X. Xxxxxx Xxxx Xxxxxxxxxx Xxxxxxx Xxxxx Xxxxxx Xxxxx Xxx Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressFortress Biotech, Inc. EXHIBIT A Form of Lock-Up up Agreement XXXXXX_______, XXXXXXXX & COMPANY2017 AVENUE THERAPEUTICS, INCORPORATED XXXXXXXX INC. 0 Xxxxxxxxxx Xxxxxx 0xx Xxxxx Fargo SecuritiesXxx Xxxx, LLC BB&T Capital MarketsXX 00000 XXXXXXX XXXXX & ASSOCIATES, a division of BB&T Securities, LLC INC. As Representatives Representative of the Several Underwriters xc/x Xxxxxxo Raymond Xxxxx & Associates, Inc. 000 Xxxxxxxx & CompanyXxxxxxx Xx. Xxxxxxxxxx, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx XX 00000 Re: Heartland ExpressAvenue Therapeutics, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “"Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, ) - Restriction on Stock Sales Dear Sirs: This letter is delivered to you pursuant to the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) to be entered into by the Company, as issuer, and Xxxxxxx Xxxxx & Associates, Inc., the representative (the “Representative”) of certain underwriters (the “Underwriters”) to be named therein. Upon the terms and subject to the conditions of the Underwriting Agreement, the Underwriters intend to effect a public offering of Common Stock, par value $0.0001 per share, of the Company (the “Shares”), on behalf as described in and contemplated by the registration statement of the several Company on Form S-1, File No. 333-[_____] (the “Registration Statement”), as filed with the Securities and Exchange Commission on [__________], 2017 (the “Offering”). The undersigned recognizes that it is in the best financial interests of the undersigned, as an officer or director, or an owner of stock, options, warrants or other securities of the Company (the “Company Securities”), that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or may be, subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters named in Schedule I that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as an inducement to such agreement the Underwriters to execute the Underwriting Agreement, the undersigned hereby acknowledges and agrees that the undersigned will not (i) offer, sell, contract to sell, pledge, grant any option to purchase or otherwise dispose of (collectively, a “Disposition”) any Company Securities, or any securities convertible into or exercisable or exchangeable for, or any rights to purchase or otherwise acquire, any Company Securities held by the undersigned or acquired by the undersigned after the date hereof, or that may be deemed to be beneficially owned by the undersigned (collectively, the “UnderwritersLock-Up Shares”), with pursuant to the Company Rules and Regulations promulgated under the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 Securities Act of 1933, as amended (the “Selling StockholderAct”), providing and the Securities Exchange Act of 1934, as amended, for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning commencing on the date hereof and ending on the date that is 90 180 days from after the date of the final prospectus relating Company’s Prospectus first filed pursuant to Rule 424(b) under the Public Offering Act, inclusive (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of XxxxxxXxxxxxx Xxxxx & Associates, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract Inc. or (ii) exercise or seek to sell, pledge, lend, grant exercise or effectuate in any option to purchase, make manner any short sale or otherwise dispose rights of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or nature that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within or may have hereafter to require the rules and regulations Company to register under the Act the undersigned’s sale, transfer or other disposition of any of the Securities and Exchange Commission (collectively Lock-Up Shares or other securities of the “Undersigned's Shares”)Company held by the undersigned, or to otherwise participate as a selling securityholder in any manner in any registration effected by the Company under the Act, including under the Registration Statement, during the Lock-Up Period. The foregoing restriction is restrictions are expressly agreed to preclude the undersigned from engaging in any hedging hedging, collar (whether or not for any consideration) or other transaction that is designed to result in, or that reasonably could be expected to lead toor result in a Disposition of Lock-Up Shares during the Lock-Up Period, a sale or disposition of the Undersigned’s Shares even if such Lock-Up Shares would be disposed of by someone other than the undersignedsuch holder. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call optionoption or reversal or cancellation thereof) with respect to any of the Undersigned’s Lock-Up Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from such Lock-Up Shares. In addition, Notwithstanding the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, agreement not to make any Disposition during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided you have agreed that the donee or donees thereof agree to be bound in writing by the foregoing restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).apply to:
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSCATALYST BIOSCIENCES, INC. By: /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice Xxxxxx Xxxxx President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Firm Shares XxxxxxXxxxxxx Xxxxx & Associates, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities2,907,692 National Securities Corporation 830,769 LifeSci Capital, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, 553,846 JonesTrading Institutional Services LLC 650,000 323,077 Total: 3,250,000 Schedule 4,615,384 SCHEDULE II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Price per share to the public: $6.50 Firm Shares: 3,250,000 Number of 4,615,384 Additional Shares: 487,500 Public Offering Price: $23.75 per share 692,307 SCHEDULE III Persons Subject to Lock-up Xxxxxx Xxxxx, Ph.D. Xxxxxx Xxxx, X.X.X.Xx., Ph.D., M.M.M. Xxxxxxxxx Xxxxxx Xxxxxx Xxxx Xxxxx Xxxxxxxx Xxxxx X. Xx Xxxxx, Ph.D. Xxxxxxxx Xxxx, M.D., Ph.D. Xxxxxx Xxxxxx EXHIBIT A Form of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressLock-up Agreement June ___, 2020 Catalyst Biosciences, Inc. Lock-Up Agreement XXXXXX000 Xxxxxxx Xxxxxxxxx, XXXXXXXX Xxxxx 000 Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 XXXXXXX XXXXX & COMPANYASSOCIATES, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives Representative of the Several Underwriters xc/x o Raymond Xxxxx & Associates, Inc. 000 Xxxx Xxxxxx, Xxxxxxxx & Company, Incorporated Xxxxx 000 Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his motherXxxx, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Xxxx 00000
Appears in 1 contract
Samples: Underwriting Agreement (Catalyst Biosciences, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that If the foregoing correctly sets forth the agreement understanding between the Underwriters and the Company, please so indicate in the Selling Stockholder and the several Underwritersspace provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. . Very truly yours, HEARTLAND EXPRESSPEAK RESORTS, INC. /s/ Xxxx X. Xxxxxxx By: Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of Accepted on the date first above mentionedwritten. XXXXXXX XXXXX & ASSOCIATES, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Name: Title: SCHEDULE I Xxxxxx Authorized Representative XXXXX FARGO SECURITIES& Xxxxxxx, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. EXHIBIT A-1 Lock-Up Agreement XXXXXX___________ __, XXXXXXXX 20__ Xxxxxxx Xxxxx & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland ExpressAssociates, Inc. - Lock-Up Agreement 000 Xxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxxx, XX 00000 Attn: Syndicate Dept Ladies and Gentlemen: The undersignedundersigned understands that Xxxxxxx Xxxxx & Associates, an officer and/or director of Heartland Express, Inc., a Nevada corporation Inc. (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “RepresentativesRepresentative”) propose proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”)) with Peak Resorts, on behalf of the several Underwriters named in Schedule I to such agreement (collectivelyInc., the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 a Missouri corporation (the “Selling StockholderCompany”), providing for a the public offering (the “Public Offering”) by the Representative of Shares __________ shares of common stock (as defined in “Firm Shares”), par value $0.01 per share, of the Underwriting AgreementCompany (the “Shares”). In consideration of To induce the agreement by Representative to continue its efforts in connection with the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledgedPublic Offering, the undersigned hereby agrees that, without the prior written consent of the Representative, it will not, during the period beginning commencing on the date hereof and ending on the date that is 90 180 days from after the date of the final prospectus (the “Prospectus”) relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that(1) offer, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offerpledge, sell, contract to sell, pledgegrant, lend, grant any option to purchase, make any short sale or otherwise transfer or dispose of of, directly or indirectly, any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, Shares or any securities convertible into, into or exercisable or exchangeable for Shares, or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian2) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in enter into any hedging swap or other transaction arrangement that is designed transfers to result inanother, in whole or that reasonably could be expected to lead toin part, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s economic consequences of ownership of the Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Shares or with respect to any security that includessuch other securities, relates to in cash or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Sharesotherwise. Notwithstanding the foregoing, the undersigned may, during may transfer Shares without the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member prior consent of the immediate family Representative in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the undersignedPublic Offering, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (iino filing under Section 16(a) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of Shares or other securities acquired in such open market transactions, (b) transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no other public filing or report regarding such transfer under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the Lock-Up up Period. For purposes , (c) transfer of this Lock-Up AgreementShares to a charity or educational institution, “immediate family” shall mean or (d) if the undersigned, directly or indirectly, controls a corporation, partnership, limited liability company or other business entity, any relationship by bloodtransfers of Shares to any shareholder, marriage partner or adoptionmember of, not more remote than first cousin. As or owner of the date hereofsimilar equity interests in, the Undersigned’s Shares are notundersigned, and for as the duration of this Lock-Up Agreement the Undersigned’s Shares will not case may be, pledgedif, hypothecatedin any such case, or granted as collateral or security such transfer is not for any obligationvalue. [In addition, notwithstanding the foregoing, undersigned agrees that during the Lock-Up Period, without the undersigned may sell or otherwise dispose prior written consent of the UndersignedRepresentative, it will not make any demand for or exercise any right with respect to the registration of any Shares or any security convertible into or exercisable or exchangeable for Shares. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares for except in compliance with this Agreement. If (i) the purpose Company issues an earnings release or material news, during the last 17 days of raising proceeds the Lock-Up Period, or (ii) prior to cover the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed by this agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release, unless the Representative waives such extension. No provision in this agreement shall be deemed to restrict or otherwise satisfying prohibit the reasonably estimated U.S. federal exercise or state tax liability incurred exchange by the undersigned as a result of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares, provided that the vesting, undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up Period, unless otherwise permitted pursuant to the terms of restricted this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a so-called “10b5-1” plan at any time (other than the entry into or modification of such a plan in such a manner as to cause the sale of any Shares or any securities convertible into or exercisable or exchangeable for Shares within the Lock-Up Period). The undersigned understands that the Company and the Representative are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by ____________, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Representative. Very truly yours, (Name): (Address) EXHIBIT A-2 Lock-Up Agreement ___________ __, 20__ Xxxxxxx Xxxxx & Associates, Inc. 000 Xxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxxx, XX 00000 Attn: Syndicate Dept The undersigned understands that Xxxxxxx Xxxxx & Associates, Inc. (the “Representative”) proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Peak Resorts, Inc., a Missouri corporation (the “Company”), providing for the public offering (the “Public Offering”) by the Representative of __________ shares of Common Stock outstanding common stock (“Firm Shares”), par value $0.01 per share, of the Company (the “Shares”). To induce the Representative to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of the Representative, it will not, during the period commencing on the date hereof pursuant and ending 180 days after the date of the final prospectus (the “Prospectus”) relating to stock plans disclosed the Public Offering (the “Lock-Up Period”), (1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any Shares or any securities convertible into or exercisable or exchangeable for Shares, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the Time economic consequences of Sale Information ownership of the Shares, whether any such transaction described in clause (as defined 1) or (2) above is to be settled by delivery of Shares or such other securities, in cash or otherwise. Notwithstanding the Underwriting Agreement)foregoing, the undersigned may transfer Shares without the prior consent of the Representative in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the Public Offering, provided that each such transfer shall occur on or about no filing under Section 16(a) of the time Securities Exchange Act of such vesting and 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of an amount of the Undersigned’s Shares that raises gross proceeds thator other securities acquired in such open market transactions, as nearly as reasonably practicable, approximate such tax liability, and provided further that (b) if the undersigned is required an individual, transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to make a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no filing under Section 16(a) of the Exchange Act Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the UndersignedLock-up Period, (c) transfer of Shares to a charity or educational institution, (d) if the undersigned is, or directly or indirectly controls, a corporation, partnership, limited liability company or other business entity, any transfers of Shares to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned, as the case may be, if, in any such case, such transfer is not for value, or (e) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer of Shares made by the undersigned (i) in connection with the sale or other bona fide transfer in a single transaction of all or substantially all of the undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigned’s assets, in any such case not undertaken for the purpose of avoiding the restrictions imposed by this agreement or (ii) to another corporation, partnership, limited liability company or other business entity so long as the transferee is an affiliate of the undersigned and such transfer is not for value. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares except in compliance with this Agreement. If (i) the Company issues an earnings release or material news, during the last 17 days of the Lock-Up Period, or (ii) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed by this agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release, unless the Representative waives such extension. No provision in this agreement shall be deemed to restrict or prohibit the exercise or exchange by the undersigned of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares, provided that the undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up Period as Period, unless otherwise permitted pursuant to the terms of this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a result so-called “10b5-1” plan at any time (other than the entry into or modification of such sale or disposition, the undersigned shall include a statement plan in such report a manner as to cause the effect sale of any Shares or any securities convertible into or exercisable or exchangeable for Shares within the Lock-Up Period). The undersigned understands that the purpose of such sale or other disposition was to cover tax obligations Company and the Representative are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned in connection with the vesting of further understands that this agreement is irrevocable and shall be binding upon the undersigned’s restricted shares heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by _____________, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxxthe Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, who serves as trustee including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of several GRATs established by his motherwhich are subject to negotiation between the Company and the Representative. Very truly yours, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Name): (Address) ANNEX 1 Subsidiaries ANNEX 2 Initial Properties Hidden Valley Snow Creek Boston Xxxxx Brandywine Paoli Peaks Attitash Mount Snow Wildcat Mountain Mad River Crotched Mountain Xxxx Xxxxx Big Boulder
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSADMA BIOLOGICS, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxxxxxx Xxxx X. Xxxxxxx Title: Executive Vice Xxxxxxxx President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx X. Xxxxxx Authorized Representative XXXXX FARGO SECURITIESXxxxxx X. Xxxxxx VP, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule XXXX Syndicate Operations SCHEDULE I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”)Xxxxxxx Xxxxx & Associates, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx Inc. 25,000,000 Cantor Xxxxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”)Co. 25,000,000 Total 50,000,000 34 SCHEDULE II Issuer Free Writing Prospectus None. The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).SCHEDULE III
Appears in 1 contract
Samples: Adma Biologics, Inc.
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, LIPOCINE INC. /s/ Xxxx Mxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice Xxxxx President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Axxxxx X. Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Firm Shares XxxxxxRxxxxxx Jxxxx & Associates, Xxxxxxxx Inc. 12,857,142 Ladenburg Txxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Co. Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 1,428,572 Total: 3,250,000 Schedule 14,285,714 * It is understood that the $150,000 financial advisory fee due to HX Xxxxxxxxxx as described in the Underwriting Section of the Prospectus shall be deducted from the fees owed to the Underwriters, but shall not reduce the fee to Ladenburg Txxxxxxx based on the above allocations. SCHEDULE II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Price per share to the public: $1.75 Firm Shares: 3,250,000 Number of 14,285,714 Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. 2,142,857 SCHEDULE III Persons Subject to Lock-Up up Mxxxxx X. Xxxxx Mxxxxx X. Xxxxx Jxxxxxx X. Xxxx Jxxx X. Xxxxxxx Dx. Xxxxxxx X. Hill Dr. R. Dxxx Xxx Nxxxxxxxxx Xxxxxxxxxxx EXHIBIT A Form of Lock-up Agreement XXXXXXJanuary ___, XXXXXXXX 2021 Lipocine Inc. 600 Xxxxxxx Xxxxx, Xxxxx 000 Xxxx Xxxx Xxxx, Xxxx 00000 RXXXXXX JXXXX & COMPANYASSOCIATES, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives Representative of the Several Underwriters xc/x o Raymond Jxxxx & Associates, Inc. 200 Xxxx Xxxxxx, Xxxxxxxx & Company, Incorporated Xxxxx 000 Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his motherXxxx, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Xxxx 00000
Appears in 1 contract
Research Analyst Independence. The Company and acknowledges that the Selling Stockholder acknowledge that (a) the UnderwritersPlacement Agents’ research analysts and research departments department are required to be independent from their respective investment banking divisions division and are subject to certain regulations and internal policies policies, and (b) the Underwritersthat such Placement Agents’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisionsdivision. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters Placement Agents with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments department may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s such Placement Agents’ investment banking division. The Company and acknowledges that the Selling Stockholder acknowledge that each of the Underwriters is a Placement Agents are full service securities firm firms and as such, such from time to time, subject to applicable securities laws, rules and regulations, may effect transactions for its their own account or the account of its their customers and hold long or short positions in debt or equity securities of the companies Company; provided, however, that are nothing in this Section 17 shall relieve the subject Placement Agents of the transactions contemplated by this Agreementany responsibility or liability they may otherwise bear in connection with activities in violation of applicable securities laws, rules and regulations. Please confirm that [Signature Page Follows] If the foregoing correctly sets forth is in accordance with your understanding of the agreement between the Company, the Selling Stockholder Company and the several UnderwritersPlacement Agents, kindly indicate your acceptance in the space provided for that purpose below. Very truly yours, HEARTLAND EXPRESSENTREMED, INC. By: /s/ Xxxx Jxxxx X. Xxxxxxx Xxxxx Name: Xxxx Jxxxx X. Xxxxxxx Xxxxx Title: Executive Vice President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED Accepted as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED written: THINKEQUITY PARTNERS LLC By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INCDxxxx X. Xxxxxx, Xx. ByName: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESDxxxx X. Xxxxxx, Xx. Title: Partner RXXXXX & RXXXXXX, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx Txxxxx X. Xxxxx Authorized Representative Xxxxxxx Name: Txxxxx X. Xxxxx Managing Director US 3297123v.16 Title: Chief Financial Officer Schedules and Exhibits Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 TotalI: 3,250,000 Schedule II Issuer General Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number Schedule II: Permitted Free Writing Prospectuses Schedule III: Subsidiaries Exhibit A: Subscription Terms Exhibit B: Form of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division Exhibit C: List of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Directors and Executive Officers Executing Lock-Up Agreement Ladies and GentlemenAgreements Exhibit D: Matters To Be Covered In The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Opinion Of Corporate Counsel To The Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s such Underwriters’ investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this AgreementAgreement and the General Disclosure Package. Please confirm that If the foregoing correctly sets forth it m accordance with your understanding of our agreement, kindly sign and return to the Company erne of the counterparts hereof, whereupon it will become a binding agreement between among the Company, the Selling Stockholder Securityholders and the several UnderwritersUnderwriters in accordance with its terms. Very truly yours, HEARTLAND EXPRESSLaureate Education, INC. Inc. By: /s/ Xxxx Xxxxxxx X. Xxxxxxx Xxxxxxxxx Name: Xxxx Xxxxxxx X. Xxxxxxx Xxxxxxxxx XXX Title: Executive Vice President of Finance Chief Legal Officer and Chief Financial Ethics & Compliance Officer SELLING STOCKHOLDERKKR 2006 Fund (Overseas), Limited Partnership By: 2009 KKR 2006 Limited, its General Partner By: /s/ Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Xxxxxxxxx Name: Xxxxxxxx X. Xxxxxx Xxxxxxxxx Title: Trustee CONFIRMED Director KKR Partners II (International), L.P. By: KKR PI-II GP Limited, its General Partner By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Attorney-in-Fact [Signature Page to Underwriting Agreement] The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above mentioned, written. Acting on behalf of itself and as the Representatives and Representative of the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxxxx Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, & Co. LLC By: /s/ Xxxx Xxx Name: Xxxx Xxx Title: Managing Director, Equity Capital Markets Schedule A Underwriter Number of Securities Xxxxxxx Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES& Co. LLC 12,571,988 BTIG, LLC By: /s/ 5,936,880 Loop Capital Markets LLC 4,574,588 Xxxxxx Xxxxxxx & Co. LLC 3,049,725 BMO Capital Markets Corp. 1,524,533 Mizuho Securities USA LLC 1,524,533 Academy Securities, Inc. 457,492 AmeriVet Securities, Inc. 457,492 Xxxxxxxx Van, LLC 457,492 Xxxxxxx Capital Markets LLC 457,492 Xxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, 457,492 Xxxxxxx & Xxxx Investments Inc. 457,492 Telsey Advisory Group LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, 457,492 Tigress Financial Partners LLC 650,000 Total: 3,250,000 457,492 Total 32,842,183 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).B
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSADMA BIOLOGICS, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Firm Shares Rxxxxxx Jxxxx & Associates, Inc. [●] Total: _________ SCHEDULE II SCHEDULE III Issuer Free Writing Prospectus SCHEDULE IV Persons Subject to Lock-up Axxx X. Xxxxxxxx Sxxxxx X. Xxxx Dx. Xxxxxxxx Xxxxx Bxxxxx X. Xxxx Dxx X. Xxxxxxxxx, M.D. Jxxxxxx X. Xxxxxxx, D.P.S. Lxxxxxxx X. Xxxxxxx Exxx X. Xxxxxxx Bxxxx Xxxx Jxxxx Xxxx, M.D., Ph.D. Biotest Pharmaceuticals Corporation Biotest AG Aisling Capital II LP Biomark Capital Fund IV LP EXHIBIT A Form of Lock-up Agreement _______, 2017 ADMA Biologics, Inc. 400 Xxxxx Xxxxx 00 Xxxxxx, Xxxxxxxx XX 00000 RXXXXXX JXXXX & CompanyASSOCIATES, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives Representative of the Several Underwriters xc/x Xxxxxxo Raymond Jxxxx & Associates, Inc. 800 Xxxxxxxx & CompanyXxxxxxx Xx. Xxxxxxxxxx, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx XX 00000 Re: Heartland ExpressADMA Biologics, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, ) - Restriction on Security Sales Dear Sirs: This letter agreement is delivered to you pursuant to the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) to be entered into by the Company, as issuer, and Rxxxxxx Jxxxx & Associates, Inc., the representative (the “Representative”) of certain underwriters (the “Underwriters”) to be named therein. Upon the terms and subject to the conditions of the Underwriting Agreement, the Underwriters intend to effect a public offering of common stock, par value $0.0001 per share, of the Company (the “Shares”), on behalf as described in and contemplated by the registration statement of the several Company on Form S-1, File No. 333-[_____] (the “Registration Statement”), as filed with the Securities and Exchange Commission on [__________], 2017 (the “Offering”). The undersigned recognizes that it is in the best financial interests of the undersigned, as an officer or director, or an owner of stock, options, warrants or other securities of the Company (the “Company Securities”), that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or may be, subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters named in Schedule I that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as an inducement to such agreement the Underwriters to execute the Underwriting Agreement, the undersigned hereby acknowledges and agrees that the undersigned will not (i) offer, sell, contract to sell, pledge, grant any option to purchase or otherwise dispose of (collectively, a “Disposition”) any Company Securities, or any securities convertible into or exercisable or exchangeable for, or any rights to purchase or otherwise acquire, any Company Securities held by the undersigned or acquired by the undersigned after the date hereof, or that may be deemed to be beneficially owned by the undersigned (collectively, the “UnderwritersLock-Up Shares”), with pursuant to the Company rules and regulations promulgated under the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 Securities Act of 1933, as amended (the “Selling StockholderAct”), providing and the Securities Exchange Act of 1934, as amended, for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning commencing on the date hereof and ending on the date that is 90 days from after the date of the final Company’s prospectus relating first filed pursuant to Rule 424(b) under the Public Offering Act, inclusive (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of XxxxxxRxxxxxx Jxxxx & Associates, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract Inc. or (ii) exercise or seek to sell, pledge, lend, grant exercise or effectuate in any option to purchase, make manner any short sale or otherwise dispose rights of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or nature that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within or may have hereafter to require the rules and regulations Company to register under the Act the undersigned’s sale, transfer or other disposition of any of the Lock-Up Shares or other Company Securities and Exchange Commission (collectively held by the “Undersigned's Shares”)undersigned, or to otherwise participate as a selling securityholder in any manner in any registration effected by the Company under the Act, including under the Registration Statement, during the Lock-Up Period. The foregoing restriction is restrictions are expressly agreed to preclude the undersigned from engaging in any hedging hedging, collar (whether or not for any consideration) or other transaction that is designed to result in, or that reasonably could be expected to lead toor result in a Disposition of Lock-Up Shares during the Lock-Up Period, a sale or disposition of the Undersigned’s Shares even if such Lock-Up Shares would be disposed of by someone other than the undersignedsuch holder. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call optionoption or reversal or cancellation thereof) with respect to any of the Undersigned’s Lock-Up Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from such Lock-Up Shares. In addition, Notwithstanding the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, agreement not to make any Disposition during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided you have agreed that the donee or donees thereof agree to be bound in writing by the foregoing restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).apply to:
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder Shareholders acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Shareholders hereby waive waives and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the and/or Selling Stockholder Shareholders by any Underwriter’s investment banking division. The Company and the Selling Stockholder Shareholders each acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Stockholders and the several Underwriters. Very truly yours, HEARTLAND EXPRESSApplied Optoelectronics, INC. /s/ Xxxx X. Xxxxxxx Inc. Xxxxxxxx Xxx President and Chief Executive Officer The Selling Stockholders Named in Schedule II Hereto, Acting Severally By: Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee Attorney-in-Fact CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESXXXXXXX & CO. By: Authorized Representative SCHEDULE I Schedule of Underwriters Name Number Firm Shares Xxxxxxx Xxxxx & Associates, Inc. Xxxxx Xxxxxxx & Co. Xxxxx and Company, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIESXxxx Capital Partners, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 SCHEDULE II Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Selling Stockholders Stockholder Maximum Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Annex A
Appears in 1 contract
Samples: Underwriting Agreement (Applied Optoelectronics, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s such Underwriters’ investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this AgreementAgreement and the General Disclosure Package. Please confirm that If the foregoing correctly sets forth is in accordance with your understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding agreement between among the Company, the Selling Stockholder Securityholder and the several UnderwritersUnderwriters in accordance with its terms. Very truly yours, HEARTLAND EXPRESSLaureate Education, INC. Inc. By: /s/ Xxxx X. Xxxxxxx Xxxxxxx Name: Xxxx X. Xxxxxxx Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDERWengen Alberta, Limited Partnership By: 2009 Wengen Investments Limited, its General Partner By: /s/ Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Xxxxxxx Name: Xxxxxxxx Xxxxxx X. Xxxxxx Xxxxxxx Title: Trustee CONFIRMED Director The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above mentioned, written. Acting on behalf of themselves and as the Representatives and of the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, Credit Suisse Securities (USA) LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Name: Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division Title: Global Head of BB&T SECURITIES, LLC ECM By: Barclays Capital Inc. By: /s/ Xxxxxxxx Xxxx Name: Xxxxxxxx Xxxx Title: Vice President By: BMO Capital Markets Corp. By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx Title: Managing Director SCHEDULE A Underwriter Number of Firm Securities Number of Optional Securities Credit Suisse Securities (USA) LLC 2,914,480 437,172 Barclays Capital Inc. 2,914,480 437,172 BMO Capital Markets Corp. 2,914,480 437,172 Macquarie Capital (USA) Inc. 658,437 98,765 Citigroup Global Markets Inc. 658,437 98,765 Xxxxxxx Xxxxx & Co. LLC 306,249 45,937 KKR Capital Markets 658,437 98,765 Xxxxxx X. Xxxxx Authorized Representative & Co. Incorporated 306,250 45,938 Barrington Research Associates, Inc. 306,250 45,938 Xxxxx Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares & Co. 306,250 45,938 Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).306,250 45,938 Total 12,250,000 1,837,500 SCHEDULE B
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder Operating Company acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Operating Company hereby waive and release, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the Selling Stockholder Operating Company by any Underwriter’s investment banking division. The Company and the Selling Stockholder Operating Company acknowledge that each of the Underwriters is a full full-service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature page follows.] Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Operating Company, the Manager and the several Underwriters. Very truly yours, HEARTLAND EXPRESSJXXXXXXX CAPITAL, INC. By: /s/ Xxxx Jxxx X. Xxxxxxx Good Name: Xxxx Jxxx X. Xxxxxxx Good Title: Executive Vice President of Finance and Chief Financial Operating Officer SELLING STOCKHOLDERJXXXXXXX CAPITAL OPERATING COMPANY, LLC By: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 Jxxxxxxx Capital, Inc., its managing member By: /s/ Xxxxxxxx Jxxx X. Xxxxxx Good Name: Xxxxxxxx Jxxx X. Xxxxxx Good Title: Trustee President and Chief Operating Officer JCAP ADVISORS, LLC By: /s/ Jxxx X. Good Name: Jxxx X. Good Title: President and Chief Operating Officer CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Jxxxx Xxxxx Authorized Representative XXXXX FARGO SECURITIES, JXXXXXXXX LLC By: /s/ Xxxxx Jxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T KEYBANC CAPITAL MARKETS, a division of BB&T SECURITIES, LLC MARKETS INC. By: /s/ Xxxxxxx X. Rxxx Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Firm Shares XxxxxxRxxxxxx Jxxxx & Associates, Xxxxxxxx Inc. 1,400,000 Jxxxxxxxx LLC 1,000,000 KeyBanc Capital Markets Inc. 1,000,000 Rxxxxx X. Xxxxx & CompanyCo., Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 600,000 Total: 3,250,000 Schedule II 4,000,000 Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Prospectus None. Pricing Information Number of Firm Shares: 3,250,000 4,000,000 Number of Additional Shares: 487,500 600,000 Public Offering PricePrice per Share: $23.75 18.50 Discount per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Share: 4.5% SCHEDULE III Persons Subject to Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securitiesup JCAP Advisors, LLC BB&T Capital Markets, a division of BB&T SecuritiesDxxx Xxxxxxxx Mxxx X. Xxxxxx Hxxxxx X. Silver Hxxxx X. Xxxx W1 Capital, LLC As Representatives of the Several Underwriters x/x XxxxxxJxxx X. Good Jxxxx Xxxxxxx Kxxxx X. Xxxxxxxx Jxxxxxxx X. Xxxxx Highland Capital Management Fund Advisors, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo SecuritiesL.P. NexPoint Real Estate Capital, LLC and BB&T Capital MarketsNexPoint Real Estate Opportunities, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).LLC
Appears in 1 contract
Research Analyst Independence. The Company and acknowledges that the Selling Stockholder acknowledge that (a) the Underwriters’ Underwriter’s research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters Underwriter with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ Underwriter’s independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and acknowledges the Selling Stockholder acknowledge that each of the Underwriters Underwriter is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature Page Follows] Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Guarantor and the several UnderwritersUnderwriter. Very truly yours, HEARTLAND EXPRESS, AMERANT BANCORP INC. By: /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Xxxxxx Title: Trustee Vice Chairman and CEO 29 AMERANT FLORIDA BANCORP INC. By: /s/ Xxxxxx Xxxxxxxxxx Name: Xxxxxx Xxxxxxxxxx Title: Treasurer CONFIRMED AND ACCEPTED, as of the date first above mentioned. XXXXXXX XXXXX & ASSOCIATES, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Xxxx Xxxxx Name: Xxxx Xxxxx Title: Authorized Representative XXXXX FARGO SECURITIESSignatory SCHEDULE I Pricing Term Sheet [See Attached] Sch. I 1 Filed pursuant to Rule 433 Registration File No. 333-238958 Supplementing the Preliminary Prospectus Supplement dated June 16, LLC By2020 (To Prospectus dated June 15, 2020) Amerant Bancorp Inc. Pricing Term Sheet June 19, 2020 $14,000,000 5.75% Senior Notes due 2025 Issuer: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Amerant Bancorp Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & ) Guarantor: Amerant Florida Bancorp Inc. Expected Ratings:* BBB- by Xxxxx Bond Rating Agency A- by Xxxx-Xxxxx Ratings Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSCATALYST BIOSCIENCES, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice Xxxxxx Xxxxx President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Firm Shares XxxxxxXxxxxxx Xxxxx & Associates, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, 3,138,462 JonesTrading Institutional Services LLC 650,000 BB&T 553,847 Chardan Capital Markets, a division of BB&T SecuritiesLLC 461,538 LifeSci Capital, LLC 650,000 461,538 Total: 3,250,000 Schedule SCHEDULE II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Price per share to the public: $6.50 Firm Shares: 3,250,000 Number of 4,615,385 Additional Shares: 487,500 Public Offering Price: $23.75 per share 692,307 SCHEDULE III Persons Subject to Lock-up Xxxxxx Xxxxx, Ph.D. Xxxxxx Xxxx, X.X.X.Xx., Ph.D., M.M.M. Xxxxxxxxx Xxxxxx Xxxxxx Xxxx Xxxxx Xxxxxxxx Xxxxx X. Xx Xxxxx Xxxx Xxxxxxx, Ph.D. Xxxx X. Xxxxxxx Xxxxxxxx Xxxx, M.D., Ph.D. Xxxxxx Xxxxxx EXHIBIT A Form of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressLock-up Agreement February , 2020 Catalyst Biosciences, Inc. Lock-Up Agreement XXXXXX000 Xxxxxxx Xxxxxxxxx, XXXXXXXX Xxxxx 000 Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 XXXXXXX XXXXX & COMPANYASSOCIATES, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives Representative of the Several Underwriters xc/x o Raymond Xxxxx & Associates, Inc. 000 Xxxx Xxxxxx, Xxxxxxxx & Company, Incorporated Xxxxx 000 Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his motherXxxx, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Xxxx 00000
Appears in 1 contract
Samples: Underwriting Agreement (Catalyst Biosciences, Inc.)
Research Analyst Independence. The Company and acknowledges that the Selling Stockholder acknowledge that (a) the UnderwritersInitial Purchasers’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the Underwritersthat such Initial Purchasers’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters Initial Purchasers with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s such Initial Purchasers’ investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters Initial Purchasers is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that If the foregoing correctly sets forth is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the agreement between the Company, the Selling Stockholder and the several Underwritersspace provided below. Very truly yours, HEARTLAND EXPRESS, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX ATP OIL & COMPANY, INCORPORATED GAS CORPORATION By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: President Accepted: April 19, 2010 X.X. XXXXXX SECURITIES INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies For itself and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named Initial Purchasers listed in Schedule I to such agreement 1 hereto. By: /s/ Xxxx X. Xxxxx Authorized Signatory Schedule 1 Initial Purchaser Principal Amount X.X. Xxxxxx Securities Inc. 798,600,000 Credit Suisse Securities (collectivelyUSA) LLC 637,500,000 Natixis Bleichroeder LLC 45,000,000 Xxxxxx & Xxxxxxx, the “Underwriters”)LLC 15,000,000 Global Hunter Securities, with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing LLC 3,900,000 Total 1,500,000,000 Annex A [Form of Opinion of Counsel for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).]
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSCOVENANT TRANSPORTATION GROUP, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx Dxxxx X. Xxxxxx Name: Xxxxxxxx Dxxxx X. Xxxxxx Title: Trustee Chairman, President and Chief Executive Officer CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX SXXXXXXX INC. By: /s/ Xxxxxxx Mxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESMxxxxxx Xxxxxx, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Managing Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx Exxx X. Xxxxx Xxxxxx Authorized Representative Xxxxxxx Exxx X. Xxxxx Xxxxxx, Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Firm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Sxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 1,320,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 726,000 Avondale Partners, LLC 198,000 Cxxxx and Company, LLC 198,000 WR Securities, LLC 198,000 Total: 3,250,000 Schedule 2,640,000 SCHEDULE II Free Writing Prospectuses Free Writing Prospectus, dated November 13, 2014 (Press Release) The electronic roadshow available at xxx.xxxxxxxxxxx.xxx wxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 2,640,000 Number of Additional Option Shares: 487,500 396,000 Public Offering Price: $23.75 22.00 per share of Common Stock Exhibit EXHIBIT A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressCovenant Transportation Group, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX SXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital MarketsCAPITAL MARKETS, a division of BB&T SecuritiesSECURITIES, LLC As Representatives of the Several Underwriters xc/x Xxxxxxo Stephens Inc. 100 Xxxxxx Xxxxxx Xxxxxx Xxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx XX 00000 Re: Heartland ExpressCovenant Transportation Group, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland ExpressCovenant Transportation Group, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC Sxxxxxxx Inc. and BB&T Capital Markets, a division of BB&T Securities, LLC LLC, (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), ) on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”)Company, providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 75 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporatedthe Representatives, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Class A Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporatedthe Representatives, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, may (a) transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trusttrust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] or (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [herein or (ivb) to establish any contract, instruction, or plan under Rule 10b5-1 (a member “10b5-1 Plan”) of the undersigned’s immediate familyExchange Act, provided that no sales of the undersignedUndersigned’s immediate family member agrees Shares shall be made pursuant to be bound such 10b5-1 Plan in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1violation of this Lock-Up Agreement; provided, however, that it shall be a condition of transfers pursuant to clauses (ia)(i), (iia)(ii) or (iiia)(iii) and the establishment of any 10b5-1 Plan pursuant to clause (b) above that such transfers or establishment are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer or establishment shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereofThe undersigned now has, the Undersigned’s Shares are notand, and except as contemplated by clause (a)(i), (a)(ii) or (a)(iii) above, for the duration of this Lock-Up Agreement will have, good and marketable title to the Undersigned’s Shares will not beShares, pledgedfree and clear of all liens, hypothecatedencumbrances, or granted as collateral or security for any obligationand claims whatsoever. [In additionFurthermore, notwithstanding the foregoingundersigned may, during the Lock-Up Period, the undersigned may sell or otherwise dispose shares of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred Common Stock purchased by the undersigned as a result on the open market following the closing of the vesting, Public Offering if and only if (i) such sales are not required to be reported in any public report or filing with the SEC and (ii) the undersigned does not otherwise voluntarily effect any public filing or report with the SEC regarding such sales. If (x) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or other press release of restricted material information or a material event relating to the Company occurs or (y) prior to the expiration of the Lock-Up Period, the Company announces that it will release its earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the Lock-Up Period shall be extended by, and the restrictions imposed by this Lock-Up Agreement shall continue to apply until the expiration of, the 18-day period beginning on the issuance of the earnings or other press release or the occurrence of the material event; provided, however, that such extension of the lock-up period shall not apply if, (1) at the expiration of the Lock-Up Period, the Common Stock are “actively traded securities” (as defined in Regulation M under the Exchange Act) and (2) the Company meets the applicable requirements of paragraph (a)(1) of Rule 139 under the Securities Act in the manner contemplated by NASD Rule 2711(f)(4) of the FINRA Manual. Notwithstanding anything to the contrary set forth herein, on or after December 22, 2014, the undersigned may exercise one or more options to purchase shares of Common Stock outstanding on for cash or by transferring or forfeiting shares of Common Stock to the date hereof Company and may transfer or forfeit to the Company the portion of shares of Common Stock acquired upon such exercise (or otherwise held by the undersigned) necessary to cover the tax liability resulting from any such exercise, provided the options exercised are scheduled to expire in 2015. [Further, notwithstanding anything to the contrary set forth herein, the undersigned may (directly, through a spouse, or through another person or entity whose shares are beneficially owned by the undersigned pursuant to stock plans disclosed the rules and regulations of the SEC) sell the Undersigned’s Shares, in the Time of Sale Information (as defined in the Underwriting Agreement)one or more transactions, provided that each such transfer shall the sale or sales (i) are effected pursuant to a 10b5-1 Plan for the sale of no more than 20,000 shares of Common Stock, (ii) occur on or about after December 22, 2014 and (iii) do not exceed 20,000 shares, in the time aggregate.1] The undersigned also agrees and consents to the entry of such vesting stop transfer instructions with the Company’s transfer agent and shall be of an amount registrar against the transfer of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership violation of the Undersigned’s Shares during the this Lock-Up Period as a result of such sale or disposition, the Agreement. The undersigned shall include a statement in such report to the effect understands that the purpose of such sale or other disposition was to cover tax obligations Company and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the Public Offering. The undersigned in connection with the vesting of further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned’s restricted shares heirs, legal representatives, successors and assigns. Whether or not the Public Offering actually occurs depends on a number of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxxfactors, who serves as trustee including market conditions, and the Public Offering will only be made pursuant to the Underwriting Agreement. This Lock-Up Agreement shall automatically terminate and be of several GRATs established by his motherno further force and effect if (i) the Representatives advise the Company, Xxx X. Xxxxxxor the Company advises the Representatives, which hold Company common shares and make annuity payments in writing, that they will not proceed with the form of Company common shares to her or to other trusts set up for her benefitPublic Offering, which would be covered by clause (ii).) the termination of the Underwriting Agreement before the sale of any Shares to the Underwriters, or (iii) the Underwriting Agreement has not been executed by the Company and the Representatives by December 1, 2014. 1 This sentence to be included only in R.X. Xxxxx Xx. and Wxxxxxx X. Alt Lock-up Agreements. Very truly yours, Signature: Print name: Title: Back to Form 8-K
Appears in 1 contract
Samples: Underwriting Agreement (Covenant Transportation Group Inc)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering Offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by applicable law, any claims that they the Company may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s such Underwriters’ investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that If the foregoing Underwriting Agreement correctly sets forth the agreement between understanding among the Company, the Selling Stockholder Company and the several Underwriters, please so indicate in the space provided below for the purpose, whereupon this letter and your acceptance shall constitute a binding agreement among the Company and the Underwriters. Very truly yours, HEARTLAND EXPRESS, INC. HOLLYFRONTIER CORPORATION By: /s/ Xxxxxxx X. Xxxx By: Xxxxxxx X. Xxxxxxx Xxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED Treasurer Confirmed and accepted as of the date first above mentionedwritten: CITIGROUP GLOBAL MARKETS INC. By: /s/ Xxxxx Xxxxxxxxx Name: Xxxxx Xxxxxxxxx Title: Managing Director XXXXXXX, on behalf of the Representatives and the other several Underwriters named in Schedule I heretoSACHS & CO. XXXXXXBy: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx Title: Vice President XXXXXXX LYNCH, XXXXXXXX PIERCE, XXXXXX & COMPANY, XXXXX INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX Xxxxxx Name: Xxxxx Xxxxxx Title: Managing Director MUFG SECURITIES AMERICAS INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESXxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Managing Director, Head of U.S. Syndicate TD SECURITIES (USA) LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Xxxx Xxxx Name: Xxxx Xxxx Title: Director BB&T CAPITAL MARKETSANNEX A List of each Issuer General Use Free Writing Prospectus Issuer General Use Free Writing Prospectuses that are Part of the General Disclosure Package Term sheet containing the terms of the Securities, a division substantially in the form of BB&T SECURITIESExhibit B. Issuer General Use Free Writing Prospectuses that are Not Part of the General Disclosure Package Road show presentation, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 dated November 14, 2016 and first used November 14, 2016. Schedule I Name Number ofFirm Shares XxxxxxUnderwriter Principal Amount of Securities to Be Purchased Citigroup Global Markets Inc. $ 98,625,000 Xxxxxxx, Sachs & Co. $ 98,625,000 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $ 98,625,000 MUFG Securities Americas Inc. $ 98,625,000 TD Securities (USA) LLC $ 98,625,000 PNC Capital Markets LLC $ 41,250,000 Scotia Capital (USA) Inc. $ 41,250,000 SMBC Nikko Securities America, Inc. $ 41,250,000 SunTrust Xxxxxxxx & CompanyXxxxxxxx, Incorporated 975,000 Xxxxxxxx Inc. 975,000 $ 41,250,000 Xxxxx Fargo Securities, LLC 650,000 BB&T $ 41,250,000 BNP Paribas Securities Corp. $ 9,375,000 Citizens Capital Markets, a division of BB&T Inc. $ 9,375,000 U.S. Bancorp Investments, Inc. $ 9,375,000 Comerica Securities, LLC 650,000 Total: 3,250,000 Inc. $ 7,500,000 Deutsche Bank Securities Inc. $ 7,500,000 Fifth Third Securities, Inc. $ 7,500,000 Total $ 750,000,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number Subsidiary Jurisdiction of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressOrganization Equity Holder and % Held by Each 9952110 Canada Inc. Canada HollyFrontier Corporation (100%) Black Eagle, LLC Delaware HollyFrontier Corporation (100%) Eagle Consolidation LLC Delaware HollyFrontier Corporation (100%) El Paso Operating LLC Delaware HollyFrontier Corporation (100%) Ethanol Management Company LLC Delaware HollyFrontier Corporation (100%) Frontier Pipeline LLC Delaware HollyFrontier Corporation (100%) Frontier Refining & Marketing LLC Delaware HollyFrontier Corporation (100%) Xxxxx Biofuels LLC Delaware HollyFrontier Corporation (100%) Xxxxx Petroleum, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Delaware HollyFrontier Corporation (100%) Xxxxx Fargo SecuritiesRealty, LLC BB&T Capital MarketsDelaware HollyFrontier Corporation (100%) Xxxxx Refining Communications, a division of BB&T SecuritiesInc. Delaware HollyFrontier Corporation (100%) HollyFrontier Asphalt Company LLC Delaware HollyFrontier Corporation (100%) HollyFrontier Cheyenne Refining LLC Delaware HollyFrontier Corporation (100%) HollyFrontier El Dorado Refining LLC Delaware HollyFrontier Corporation (100%) HollyFrontier Holdings LLC Delaware HollyFrontier Corporation (100%) HollyFrontier Navajo Refining LLC Delaware HollyFrontier Corporation (100%) HollyFrontier Payroll Services, Inc. Delaware HollyFrontier Corporation (100%) HollyFrontier Refining & Marketing LLC Delaware HollyFrontier Corporation (100%) HollyFrontier Services LLC Delaware HollyFrontier Corporation (100%) HollyFrontier Transportation LLC Delaware HollyFrontier Corporation (100%) HollyFrontier Tulsa Refining LLC Delaware HollyFrontier Corporation (100%) HollyFrontier Xxxxx Cross Refining LLC Delaware HollyFrontier Corporation (100%) Hollymarks, LLC As Representatives of the Several Underwriters x/x XxxxxxDelaware HollyFrontier Corporation (100%) HRM Realty, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland ExpressLLC Delaware HollyFrontier Corporation (100%) Lea Refining Company Delaware HollyFrontier Navajo Refining LLC (100%) Navajo Holdings, Inc. - Lock-Up Agreement Ladies New Mexico HollyFrontier Corporation (100%) Navajo Pipeline Co., L.P. Delaware Navajo Pipeline LP, L.L.C. (99.5%) and Gentlemen: Navajo Pipeline GP, L.L.C. (0.5%) Navajo Pipeline GP, L.L.C. Delaware Navajo Holdings, Inc. (100%) Navajo Pipeline LP, L.L.C. Delaware Navajo Holdings, Inc. (100%) Wainoco Resources, Inc. Delaware HollyFrontier Corporation (100%) Wainoco Oil and Gas Company Delaware Wainoco Resources, Inc. (100%) Whispering Eagle Holdings LLC Delaware HollyFrontier Corporation (100%) Exhibit A-1 FORM OF OPINION OF COMPANY COUNSEL The undersignedopinion of Xxxxxx & Xxxxxx L.L.P., an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with counsel for the Company and (capitalized terms not otherwise defined herein shall have the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined meanings provided in the Underwriting Agreement). In consideration of the agreement by the Underwriters , to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which this is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”an Exhibit), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) delivered pursuant to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(58(d) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it Underwriting Agreement shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).that:
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder Shareholders acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Shareholders hereby waive waives and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the and/or Selling Stockholder Shareholders by any Underwriter’s investment banking division. The Company and the Selling Stockholder Shareholders each acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Stockholders and the several Underwriters. Very truly yours, HEARTLAND EXPRESSApplied Optoelectronics, INC. /s/ Xxxx X. Xxxxxxx Inc. Xxxxxxxx Xxx President and Chief Executive Officer The Selling Stockholders Named in Schedule II Hereto, Acting Severally By: Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee Attorney-in-Fact CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESXXXXXXX & CO. By: Authorized Representative SIGNATURE PAGE TO UNDERWRITING AGREEMENT SCHEDULE I Schedule of Underwriters Number of Name Firm Shares Xxxxxxx Xxxxx & Associates, Inc. Xxxxx Xxxxxxx & Co. Xxxxx and Company, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIESXxxx Capital Partners, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, Xxxxx-Xxxxxx Capital Group LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 2,700,000 SCHEDULE II Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information of Selling Stockholders Stockholder Number of Firm SharesShares Techgains International Corporation 102,148 Techgains Pan Pacific Corporation 397,852 Xxxx-Xxxxxx (Xxxxxxxx) Xxx 11,531 Xxxxxx X. Xxxxx 2,230 Xxxxx X. Xxxx 1,754 Ocean Elite Limited 150,000 GRC II Corp. 292,816 Grand River Capital Investment Company Limited 202,072 GIZA Venture Fund IV (TW) L.P. 39,216 GIZA Venture Fund V (TW) L.P. 44,492 Budworth Investments Limited 53,724 Kummell Investments Limited 102,284 Harbinger III Venture Capital Corp. 23,023 Xxxxx X. Xxx 1,623 Total: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).1,424,765 Annex A
Appears in 1 contract
Samples: Underwriting Agreement (Applied Optoelectronics, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge company acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, INC. ADAMIS PHARMACEUTICALS CORPORATION /s/ Xxxx Dxxxxx X. Xxxxxxx Xxxxx Name: Xxxx Dxxxxx X. Xxxxxxx Xxxxx Title: Executive Vice President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Ex Xxxxxx Authorized Representative XXXXX FARGO SECURITIESSCHEDULE I Number Name Firm Shares Rxxxxxx Jxxxx & Associates, Inc. 3,214,285 Maxim Group LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 1,071,430 Total: 3,250,000 Schedule 4,285,715 SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Prospectus None. SCHEDULE III Persons Subject to Lock-Up up Dxxxxx X. Xxxxx, Ph.D Rxxxxxx X. Xxxxxxxx Rxxxxx X. Xxxxxxxxx Dxxxx X. Xxxxxxxxx Wxxxxxx X. Xxxxx, III Rxxxxx X. Xxxxxxx Kxxxx X. Xxxxxxx Txxxxx Xxxx, Ph.D Rxxxxx X. Xxxx, M.D. Exxxx X. Xxxxxx Gxx Xxxxxxxxx EXHIBIT A Form of Lock-up Agreement XXXXXX_______, XXXXXXXX 2017 Adamis Pharmaceuticals Corporation 10000 Xx Xxxxxx Xxxx, Xxxxx 000 Xxx Xxxxx, Xxxxxxxxxx 00000 RXXXXXX JXXXX & COMPANYASSOCIATES, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives Representative of the Several Underwriters xc/x Xxxxxx, Xxxxxxxx o Raymond Jxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland ExpressAssociates, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned800 Xxxxxxxx Xxxxxxx Xx. Xxxxxxxxxx, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).XX 00000
Appears in 1 contract
Samples: Underwriting Agreement (Adamis Pharmaceuticals Corp)
Research Analyst Independence. The Company and the Selling Stockholder Stockholders acknowledge that (a) the Underwriters’ Underwriter’s research analysts and research departments are required to be independent from their respective its investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Shares and/or the offering that differ from the views of their respective its investment banking divisions. The Company and the Selling Stockholder Stockholders each hereby waive waives and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters Underwriter with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ Underwriter’s independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and/or the Selling Stockholder Stockholders by any the Underwriter’s investment banking division. The Company and the Selling Stockholder Stockholders each acknowledge that each of the Underwriters Underwriter is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Stockholders and the several UnderwritersUnderwriter. Very truly yours, HEARTLAND EXPRESSHEALTH INSURANCE INNOVATIONS, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxxxxxx Xxxxxxx Title: Executive Xxxxxxxxxxx, Interim Chief Financial Officer and Senior Vice President of Finance and Chief Financial Officer Business Development THE SELLING STOCKHOLDERSTOCKHOLDERS Health Plan Intermediaries, LLC By: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxx X. Xxxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxxx X. Xxxxxx Title: Trustee CEO Health Plan Intermediaries Sub, LLC By: Health Plan Intermediaries, LLC By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: CEO CONFIRMED as of the date first above mentioned. XXXXXXX XXXXX & ASSOCIATES, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose Signature Page to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration ] SCHEDULE I Schedule of the agreement by the Underwriters to offer and sell the SharesSelling Stockholders Stockholder Number of Shares Health Plan Intermediaries, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledgedLLC 1,707,549 Health Plan Intermediaries Sub, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).LLC 17,451 SCHEDULE II
Appears in 1 contract
Samples: Health Insurance Innovations, Inc.
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that If the foregoing correctly sets forth the agreement understanding between the Underwriters and the Company, please so indicate in the Selling Stockholder and the several Underwritersspace provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. Very truly yours, HEARTLAND EXPRESSPEAK RESORTS, INC. /s/ Xxxx X. Xxxxxxx By: Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of Accepted on the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I heretowritten. FBR CAPITAL MARKETS & CO. By: Name: Title: XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. ByName: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC ByTitle: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division For itself and as Representatives of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 the other Underwriters named on Schedule I Name hereto. SCHEDULE I Underwriter Number ofFirm of Initial Shares to be Purchased FBR Capital Markets & Co. Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Xxxxxx X. Xxxxx & Co. Incorporated Xxxxxx Xxxxxxxxxx Xxxxx LLC Xxxxxxxxxxx & Co. Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Total EXHIBIT A-1 Lock-Up Agreement XXXXXX, XXXXXXXX 2014 FBR Capital Markets & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Co. Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, c/o FBR Capital Markets & Co. 0000 00xx Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxx XX 00000 ReAttn: Heartland Express, Inc. - Lock-Up Agreement Syndicate Department Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, undersigned understands that FBR Capital Markets & Co. and Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital MarketsIncorporated (the each, a division of BB&T Securities, LLC (“Representative” and together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)) with Peak Resorts, on behalf of the several Underwriters named in Schedule I to such agreement (collectivelyInc., the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 a Missouri corporation (the “Selling StockholderCompany”), providing for a the public offering (the “Public Offering”) by the Representatives of Shares shares of common stock (as defined in “Firm Shares”), par value $0.01 per share, of the Underwriting AgreementCompany (the “Shares”). In consideration of To induce the agreement by Representatives to continue its efforts in connection with the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledgedPublic Offering, the undersigned hereby agrees that, without the prior written consent of the Representatives, it will not, during the period beginning commencing on the date hereof and ending on the date that is 90 180 days from after the date of the final prospectus (the “Prospectus”) relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that(1) offer, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offerpledge, sell, contract to sell, pledgegrant, lend, grant any option to purchase, make any short sale or otherwise transfer or dispose of of, directly or indirectly, any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, Shares or any securities convertible into, into or exercisable or exchangeable for Shares, or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian2) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in enter into any hedging swap or other transaction arrangement that is designed transfers to result inanother, in whole or that reasonably could be expected to lead toin part, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s economic consequences of ownership of the Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Shares or with respect to any security that includessuch other securities, relates to in cash or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Sharesotherwise. Notwithstanding the foregoing, the undersigned may, during may transfer Shares without the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member prior consent of the immediate family Representatives in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the undersignedPublic Offering, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (iino filing under Section 16(a) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of Shares or other securities acquired in such open market transactions, (b) transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no other public filing or report regarding such transfer under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the Lock-Up up Period. For purposes , (c) transfer of this Lock-Up AgreementShares to a charity or educational institution, “immediate family” shall mean or (d) if the undersigned, directly or indirectly, controls a corporation, partnership, limited liability company or other business entity, any relationship by bloodtransfers of Shares to any shareholder, marriage partner or adoptionmember of, not more remote than first cousin. As or owner of the date hereofsimilar equity interests in, the Undersigned’s Shares are notundersigned, and for as the duration of this Lock-Up Agreement the Undersigned’s Shares will not case may be, pledgedif, hypothecatedin any such case, or granted as collateral or security such transfer is not for any obligationvalue. [In addition, notwithstanding the foregoing, undersigned agrees that during the Lock-Up Period, without the undersigned may sell or otherwise dispose prior written consent of the UndersignedRepresentatives, it will not make any demand for or exercise any right with respect to the registration of any Shares or any security convertible into or exercisable or exchangeable for Shares. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares for except in compliance with this Agreement. No provision in this agreement shall be deemed to restrict or prohibit the purpose of raising proceeds to cover exercise or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred exchange by the undersigned as a result of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares, provided that the vesting, undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up Period, unless otherwise permitted pursuant to the terms of restricted this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a so-called “10b5-1” plan at any time (other than the entry into or modification of such a plan in such a manner as to cause the sale of any Shares or any securities convertible into or exercisable or exchangeable for Shares within the Lock-Up Period). The undersigned understands that the Company and the Representatives are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by March 31, 2015, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Representatives. Very truly yours, (Name): (Address) EXHIBIT A-2 Lock-Up Agreement , 2014 FBR Capital Markets & Co. Xxxxxx, Xxxxxxxx & Company, Incorporated c/o FBR Capital Markets & Co. 0000 00xx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000 Attn: Syndicate Department The undersigned understands that FBR Capital Markets & Co. and Xxxxxx, Xxxxxxxx & Company, Incorporated (the each, a “Representative” and together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Peak Resorts, Inc., a Missouri corporation (the “Company”), providing for the public offering (the “Public Offering”) by the Representatives of shares of Common Stock outstanding common stock (“Firm Shares”), par value $0.01 per share, of the Company (the “Shares”). To induce the Representatives to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of the Representatives, it will not, during the period commencing on the date hereof pursuant and ending 180 days after the date of the final prospectus (the “Prospectus”) relating to stock plans disclosed the Public Offering (the “Lock-Up Period”), (1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any Shares or any securities convertible into or exercisable or exchangeable for Shares, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the Time economic consequences of Sale Information ownership of the Shares, whether any such transaction described in clause (as defined 1) or (2) above is to be settled by delivery of Shares or such other securities, in cash or otherwise. Notwithstanding the Underwriting Agreement)foregoing, the undersigned may transfer Shares without the prior consent of the Representatives in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the Public Offering, provided that each such transfer shall occur on or about no filing under Section 16(a) of the time Securities Exchange Act of such vesting and 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of an amount of the Undersigned’s Shares that raises gross proceeds thator other securities acquired in such open market transactions, as nearly as reasonably practicable, approximate such tax liability, and provided further that (b) if the undersigned is required an individual, transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to make a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no filing under Section 16(a) of the Exchange Act Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the UndersignedLock-up Period, (c) transfer of Shares to a charity or educational institution, (d) if the undersigned is, or directly or indirectly controls, a corporation, partnership, limited liability company or other business entity, any transfers of Shares to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned, as the case may be, if, in any such case, such transfer is not for value, or (e) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer of Shares made by the undersigned (i) in connection with the sale or other bona fide transfer in a single transaction of all or substantially all of the undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigned’s assets, in any such case not undertaken for the purpose of avoiding the restrictions imposed by this agreement or (ii) to another corporation, partnership, limited liability company or other business entity so long as the transferee is an affiliate of the undersigned and such transfer is not for value. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares except in compliance with this Agreement. No provision in this agreement shall be deemed to restrict or prohibit the exercise or exchange by the undersigned of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares, provided that the undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up Period as Period, unless otherwise permitted pursuant to the terms of this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a result so-called “10b5-1” plan at any time (other than the entry into or modification of such sale or disposition, the undersigned shall include a statement plan in such report a manner as to cause the effect sale of any Shares or any securities convertible into or exercisable or exchangeable for Shares within the Lock-Up Period). The undersigned understands that the purpose of such sale or other disposition was to cover tax obligations Company and the Representatives are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned in connection with the vesting of further understands that this agreement is irrevocable and shall be binding upon the undersigned’s restricted shares heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by March 31, 2015, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxxthe Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, who serves as trustee including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of several GRATs established by his motherwhich are subject to negotiation between the Company and the Representatives. Very truly yours, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would (Name): (Address) ANNEX 1 Subsidiaries ANNEX 2 Initial Properties [To be covered by clause (ii).updated] Hidden Valley Snow Creek Boston Xxxxx Brandywine Paoli Peaks Attitash Mount Snow Wildcat Mountain Mad River Crotched Mountain Xxxx Xxxxx Big Boulder
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (ai) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (bii) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSBIOTIME, INC. By: /s/ Xxxx X. Xxxxxxx Rxxxxxx Xxxxxxxx Name: Xxxx X. Xxxxxxx Rxxxxxx Xxxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Ex Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule -33- SCHEDULE I Name Number ofFirm Firm Shares XxxxxxRxxxxxx Jxxxx & Associates, Xxxxxxxx Inc. 6,250,000 Ladenburg Txxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Co. Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T 1,923,077 Chardan Capital Markets, a division of BB&T SecuritiesLLC 961,539 LifeSci Capital, LLC 650,000 480,769 Total: 3,250,000 Schedule 9,615,385 SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressProspectus None. SCHEDULE III Persons Subject to Lock-up Nxxx Xxxxxxxx Axx Xxxxxxx Mxxxxxx X. Xxxx Rxxxxxx Xxxxxxxx Fxxxxxxx Xxxxxxx Jxx Xxxxxx Axxxxx X. Xxxxxxxx Dxxxxxx Xxxxxxx Sxxxxxx X. Xxxxxxx Mxxxxxx Xxxxxx Axxxx X. Xxxxxxx Dxxxx Xxxxxxxxx Sxxxxxxx Xxxxxx Broadwood Capital, Inc. Broadwood Partners L.P. Greenbelt Corp. Greenway Partners, L.P. EXHIBIT A Form of Lock-Up up Agreement XXXXXX_______, XXXXXXXX 2017 BioTime, Inc. 1000 Xxxxxxxx Xxxxxx, #000 Xxxxxxx, Xxxxxxxxxx 00000 RXXXXXX JXXXX & COMPANYASSOCIATES, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives Representative of the Several Underwriters xc/x Xxxxxxo Raymond Jxxxx & Associates, Inc. 800 Xxxxxxxx & CompanyXxxxxxx Xx. Xxxxxxxxxx, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx XX 00000 Re: Heartland ExpressBioTime, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, ) - Restriction on Stock Sales Dear Sirs: This letter is delivered to you pursuant to the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)) to be entered into by the Company, on behalf as issuer, and Rxxxxxx Jxxxx & Associates, Inc., the representative (the “Representative”) of the several Underwriters named in Schedule I to such agreement certain underwriters (collectively, the “Underwriters”)) to be named therein. Upon the terms and subject to the conditions of the Underwriting Agreement, with the Underwriters intend to effect a public offering of Common Stock, no par value per share, of the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling StockholderShares”), providing for a public offering as described in and contemplated by the registration statement of the Company on Form S-3, File No. 333-217182 (the “Public Registration Statement”), as filed with the Securities and Exchange Commission on May 2, 2017 (the “Offering”) ). The undersigned recognizes that it is in the best financial interests of Shares the undersigned, as an officer or director, or an owner of stock, options, warrants or other securities of the Company (the “Company Securities”), that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or may be, subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as defined in an inducement to the Underwriters to execute the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby acknowledges and agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not (i) offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale purchase or otherwise dispose of (collectively, a “Disposition”) any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common StockCompany Securities, or any securities convertible intointo or exercisable or exchangeable for, exchangeable for or any rights to purchase or otherwise acquire, any Company Securities held by the undersigned or acquired by the undersigned after the date hereof, or that represent the right may be deemed to receive shares of Common Stock, whether now be beneficially owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively collectively, the “Undersigned's Lock-Up Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession pursuant to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, Rules and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 Regulations promulgated under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), for a period commencing on the date hereof and no ending 90 days after the date of the final prospectus supplement filed pursuant to Rule 424(b) under the Act relating to the Offering, inclusive (the “Lock-Up Period”), without the prior written consent of the Representative or (ii) exercise or seek to exercise or effectuate in any manner any rights of any nature that the undersigned has or may have hereafter to require the Company to register under the Act the undersigned’s sale, transfer or other public filing disposition of any of the Lock-Up Shares or report regarding such transfer shall be required other securities of the Company held by the undersigned, or shall be voluntarily made to otherwise participate as a selling securityholder in any manner in any registration effected by the Company under the Act, including under the Registration Statement, during the Lock-Up Period. For purposes The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging, collar (whether or not for any consideration) or other transaction that is designed to or reasonably expected to lead or result in a Disposition of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, even if such Lock-Up Shares would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include any short sale or any purchase, sale or grant of any right (including any put or call option or reversal or cancellation thereof) with respect to any Lock-Up Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Lock-Up Shares. Notwithstanding the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds agreement not to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, make any Disposition during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect you have agreed that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).foregoing restrictions shall not apply to:
Appears in 1 contract
Samples: Underwriting Agreement (Biotime Inc)
Research Analyst Independence. The Company and acknowledges that the Selling Stockholder acknowledge that (a) the UnderwritersAgents’ research analysts and research departments are required to and should be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) as such the UnderwritersAgents’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or Company or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder hereby waive and release, to the fullest extent permitted by law, any claims that they may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge understands that each of the Underwriters Agent is a full full-service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that [Signature Page Follows] If the foregoing correctly sets forth is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between among the CompanyAgents, the Selling Stockholder Operating Company and the several UnderwritersCompany in accordance with its terms. Very truly yours, HEARTLAND EXPRESSVery truly yours, XXXXXXXX CAPITAL, INC. By: /s/ Xxxx X. Xxxxxxx Good Name: Xxxx X. Xxxxxxx Good Title: Chief Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDERXXXXXXXX CAPITAL OPERATING COMPANY, LLC By: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 Xxxxxxxx Capital, Inc., its managing member By: /s/ Xxxxxxxx Xxxx X. Xxxxxx Good Name: Xxxxxxxx Xxxx X. Xxxxxx Good Title: Trustee Chief Executive Officer JCAP ADVISORS, LLC By: /s/ Xxxx X. Good Name: Xxxx X. Good Title: Chief Executive Officer CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I heretosuch Agent. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Xxxxx Xxxxx Authorized Representative XXXXX FARGO SECURITIES, XXXXXXXXX LLC By: /s/ Xxxxx Xxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC XXXXXX X. XXXXX & CO. INCORPORATED By: /s/ Xxxxxxx X. Xxxxx Xxxx Xxxxxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Representative
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Samples: Equity Distribution Agreement (Jernigan Capital, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSAvenue Therapeutics, Inc. Name: Lxxx Xx President and Chief Executive Officer Confirmed: OXXXXXXXXXX & CO. INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, Acting severally on behalf of itself and as representative of the Representatives and the other several Underwriters named in Schedule I annexed hereto. XXXXXX, XXXXXXXX By OXXXXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX CO. INC. ByBy Title: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC BySCHEDULE I Number Name Firm Shares Oxxxxxxxxxx & Co. Inc. National Securities Corp. Total: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx SCHEDULE II Issuer Free Writing Prospectus SCHEDULE III Persons Subject to Lock-up Lxxx Xx Mxxxxxx X. Xxxxx Authorized Representative Xxxxxxx Lxxxxxx X. Xxxxxxxxx Dxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Sxxxx X. Xxxxxx Nxxx Xxxxxxxxxx Jxxxxxx Xxxxx Axxxxx Xxxxx Jxx Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressFortress Biotech, Inc. LockEXHIBIT A FORM OF LOCK-Up Agreement XXXXXXUP AGREEMENT June [ ], XXXXXXXX 2017 Oxxxxxxxxxx & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives Co. Inc. as Representative of the Several Underwriters xc/x Xxxxxxo Oppenheimer & Co. Inc. 80 Xxxxx Xxxxxx Xxx Xxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx Xxxx 00000 Re: Heartland ExpressPublic Offering of Avenue Therapeutics, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director a holder of Heartland Expresscommon stock, Inc.par value $0.0001 per share (“Common Stock”), a Nevada corporation or rights to acquire Common Stock, of Avenue Therapeutics, Inc. (the “Company”), or one of its subsidiaries, understands that Xxxxxxyou, Xxxxxxxx & Companyas Representative of the several Underwriters, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)) with the Company, on behalf of providing for the public offering (the “Offering”) by the several Underwriters named in Schedule I to such agreement the Underwriting Agreement (collectively, the “Underwriters”), with of securities of the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public OfferingSecurities”) of Shares pursuant to registration statement on Form S-1 (as File No. 333-217552). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement). In consideration of the Underwriters’ agreement by to enter into the Underwriters Underwriting Agreement and to offer and sell proceed with the SharesOffering of the Securities, and of for other good and valuable consideration the consideration, receipt and sufficiency of which is hereby acknowledged, the undersigned hereby agrees for the benefit of the Company, you and the other Underwriters that, during without the period beginning prior written consent of Oxxxxxxxxxx & Co. Inc. on behalf of the Underwriters (the “Representative”), the undersigned will not, from the date hereof and through the period ending on the date that is 90 180 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”) following the date of the prospectus supplement relating to the Offering (the “Prospectus”), directly or indirectly, unless otherwise provided herein, (1) offer, pledge, assign, encumber, announce the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offerintention to sell, sell, contract to sell, pledgesell any option or contract to purchase, lendpurchase any option or contract to sell, grant any option option, right or warrant to purchase, make any short sale or otherwise transfer or dispose of any shares of the Company’s Common Stockof, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, Stock of the Company or any securities convertible into, into or exercisable or exchangeable for Common Stock owned either of record or beneficially (as defined in the Securities Exchange Act of 1934, as amended) by the undersigned on the date hereof or hereafter acquired or (2) enter into any swap, hedge or other agreement that represent transfers, in whole or in part, any of the right to receive shares economic consequences of ownership of the Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned any such transaction described in clause (including holding as a custodian1) or with respect (2) above is to which the undersigned has beneficial ownership within the rules and regulations be settled by delivery of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging Common Stock or such other securities, in any hedging cash or other transaction that is designed to result inotherwise, or that reasonably could be expected publicly announce an intention to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to do any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Sharesforegoing. In addition, the undersigned agrees that, without the prior written consent of Xxxxxxthe Representative, Xxxxxxxx & Company, Incorporated, the undersigned it will not, during the Lock-Up Period, make any demand for, for or exercise any right with respect to, the registration of the Undersigned’s Sharesany shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares The foregoing shall not apply to (ix) Common Stock to be transferred as a bona fide gift or gifts (provided that any donee thereof agrees in writing to be bound by the terms hereof), (y) the transfer of Common Stock or by will, other testamentary document any security exercisable or intestate succession convertible for Common Stock (1) to any trust for the legal representative, heir, beneficiary direct or a member indirect benefit of the undersigned or the immediate family of the undersigned, provided that (2) if the donee undersigned is a corporation, partnership, limited liability company, trust or donees thereof agree to be bound in writing by the restrictions set forth herein, other business entity (iiA) to any trustanother corporation, provided partnership, limited liability company, trust or other business entity that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve is a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned direct or the undersigned’s family members indirect affiliate (as defined in Section A.1(a)(5) of the General Instructions S-8 Rule 405 promulgated under the Securities Act of 1933, as amended (the “Securities Act”)), provided that ) of the entity agrees to be bound in writing by the restrictions set forth herein, [undersigned or (ivB) to a member limited partners, limited liability company members or stockholders of the undersigned’s immediate family, provided (3) if the undersigned is a trust, to the beneficiary of such trust, (4) by testate succession or intestate succession, (5) by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement, or (6) pursuant to the Underwriting Agreement; provided, in the case of clauses (1)-(5), that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; providedvalue and the transferee agrees in writing with the Underwriters and the Company to be bound by the terms of this Letter Agreement, however, that it shall be and (z) the establishment of a condition of transfers trading plan pursuant to clauses (i)Rule 10b5-1 under the Exchange Act for the transfer of Common Stock, (ii) or (iii) above provided that such transfers are plan does not required to be reported and are not voluntarily reported with provide for the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 transfer of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made Common Stock during the Lock-Up PeriodPeriod and no public announcement or filing under the Exchange Act regarding the establishment of such plan is required or voluntarily made by or on behalf of the undersigned or the Company. For purposes If the undersigned is an officer or director of this the Company, the undersigned further agrees that the foregoing restrictions shall be equally applicable to any issuer-directed shares of Common Stock the undersigned may purchase in the Offering. Notwithstanding the foregoing, if (x) during the last 17 days of the Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage Period the Company issues an earnings release or adoption, not more remote than first cousin. As material news or a material event relating to the Company occurs; or (y) prior to the expiration of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose Company announces that it will release earnings results during the 16-day period beginning on the last day of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, ; the restrictions imposed in this Letter Agreement shall continue to apply until the expiration of restricted shares of Common Stock outstanding the 18-day period beginning on the date hereof pursuant to stock plans disclosed in issuance of the Time earnings release or the occurrence of Sale Information (the material news or material event; provided, however, that this sentence shall not apply if the research published or distributed on the Company is compliant under Rule 139 of the Securities Act and the Company’s securities are actively traded as defined in Rule 101(c)(1) of Regulation M of the Exchange Act. In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement. The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned. The undersigned understands that, if the Underwriting Agreement)Agreement does not become effective, provided that each such transfer or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall occur on terminate or about the time of such vesting be terminated prior to payment for and shall be of an amount delivery of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required Securities to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or dispositionbe sold thereunder, the undersigned shall include a statement be released from all obligations under this Letter Agreement. The undersigned, whether or not participating in such report the Offering, understands that the Underwriters are entering into the Underwriting Agreement and proceeding with the Offering in reliance upon this Letter Agreement. This Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the effect that the purpose conflict of such sale or laws principles thereof (other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTDthan New York General Obligations Law § 5-1401). Very truly yours, STOCKHOLDER By: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Name: Title:
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s such Underwriters’ investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this AgreementAgreement and the General Disclosure Package. Please confirm that If the foregoing correctly sets forth is in accordance with the Representatives’ understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding agreement between among the Company, the Selling Stockholder Company and the several UnderwritersUnderwriters in accordance with its terms. Very truly yours, HEARTLAND EXPRESSLaureate Education, INC. /s/ Xxxx X. Xxxxxxx Inc. By: Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance The foregoing Underwriting Agreement is hereby confirmed and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED accepted as of the date first above mentioned, written. Acting on behalf of themselves and as the Representatives and of the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, By Credit Suisse Securities (USA) LLC By: /s/ Xxxxx Name: Title: By Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, Xxxxxxx & Co. LLC By: /s/ Name: Title: By Barclays Capital Inc. By: Name: Title: SCHEDULE A Underwriter Number of Firm Securities Credit Suisse Securities (USA) LLC Xxxxxx Xxxxxxx & Co. LLC Barclays Capital Inc. Macquarie Capital (USA) Inc. X.X. Xxxxxx Securities LLC BMO Capital Markets Corp. Citigroup Global Markets Inc. Xxxxxxx, Xxxxx & Co. Xxxxxx X. Xxxxx Authorized Representative & Co. Incorporated Barrington Research Associates, Inc. Xxxxx Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares & Co. Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxxxx Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo SecuritiesL.L.C. Banco Bradesco BBI S.A. BTG Pactual US Capital, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Total 29,000,000 SCHEDULE B
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge company acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, INC. BANK OF COMMERCE HOLDINGS /s/ Xxxx Xxxxxx X. Xxxxxxx Name: Xxxx Xxxxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Operating Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx X. Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule [Signature Page to Underwriting Agreement] SCHEDULE I Name Number ofFirm Firm Shares XxxxxxXxxxxxx Xxxxx & Associates, Inc. 1,904,763 X.X. Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Co. 476,190 Total: 3,250,000 Schedule 2,380,953 SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Prospectus
Appears in 1 contract
Research Analyst Independence. The Company and acknowledges that the Selling Stockholder acknowledge that (a) the Underwriters’ Placement Agent’s research analysts and research departments department are required to be independent from their respective its investment banking divisions division and are is subject to certain regulations and internal policies policies, and (b) the Underwriters’ that such Placement Agent’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective its investment banking divisionsdivision. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters Placement Agent with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ its independent research analysts and research departments department may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwritersuch Placement Agent’s investment banking division. The Company and acknowledges that the Selling Stockholder acknowledge that each of the Underwriters Placement Agent is a full service securities firm and as such, such from time to time, subject to applicable securities laws, rules and regulations, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies Company; provided, however, that are nothing in this Section 17 shall relieve the subject Placement Agent of the transactions contemplated by this Agreementany responsibility or liability that it may otherwise bear in connection with activities in violation of applicable securities laws, rules and regulations. Please confirm that If the foregoing correctly sets forth is in accordance with your understanding of the agreement between the Company, the Selling Stockholder Company and the several UnderwritersPlacement Agent, kindly indicate your acceptance in the space provided for that purpose below. Very truly yours, HEARTLAND EXPRESSCYTORI THERAPEUTICS, INC. By: /s/ Xxxx X. Xxxxxxx Xxxx Name: Xxxx X. Xxxxxxx Xxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED Accepted as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I heretowritten: XXXXX XXXXXXX & CO. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. ByX. Xxxxxxxxx Name: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC ByXxxxx X. Xxxxxxxxx Title: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedules and Exhibits Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 TotalI: 3,250,000 Schedule II Issuer General Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number Schedule II: Permitted Free Writing Prospectuses Schedule III: Certain Investors Exhibit A: Form of Firm SharesSubscription Terms Exhibit B: 3,250,000 Number Form of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division Exhibit C: List of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Directors and Executive Officers Executing Lock-Up Agreement Agreements Exhibit D: Matters To Be Covered In The Opinion Of Counsel To The Company Exhibit E: Form of Written Statement of Corporate Counsel to the Company Exhibit F: Pricing Information Schedule I Issuer General Free Writing Prospectuses Form of Subscription Terms Schedule II Permitted Free Writing Prospectuses Company press release announcing the offering. Schedule III Certain Investors Xxxxxx Securities CAM - Xxxx Xxxxx Wasatch Advisors Xxxx Capital Daiwa Securities Quintiles Transnational - NovaQuest MicroValue (Xxxxx, Zulle) Exhibit A Form of Subscription Terms Cytori Therapeutics, Inc. 0000 Xxxxxx Xxxx San Diego, California 92121 Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation undersigned (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “RepresentativesInvestor”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), hereby confirms and agrees with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (you as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).follows:
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSASTERIAS BIOTHERAPEUTICS, INC. /s/ Xxxx X. Xxxxxxx Xxxxx Xxxxx Name: Xxxx X. Xxxxxxx Xxxxx Xxxxx Title: Chief Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESSCHEDULE I Name Number Firm Shares Number Firm Warrants Xxxxxxx Xxxxx & Associates, Inc. 2,702,206 1,351,104 BTIG, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES1,801,470 900,736 FBR Capital Markets & Co. 214,461 107,230 Lake Street Capital Markets, LLC By214,461 107,230 Xxxxx Trading Institutional Services LLC 214,461 107,230 Total: /s/ 5,147,059 2,573,530 - 34 - SCHEDULE II Issuer Free Writing Prospectus None. SCHEDULE III Persons Subject to Lock-up Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxxxx Xxxx X. Xxxxxxxxx Xxx Xxxxxx Xxxxxx X. Xxxxxxxx Xxxx Xxxx Xxxxxx Xxxxxx Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares XxxxxxXxxx Xxx Xxxxxxxxx Xxxxxxx XxXxxx Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division III EXHIBIT A Form of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up up Agreement XXXXXX_______, XXXXXXXX & COMPANY2016 ASTERIAS BIOTHERAPEUTICS, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities0000 Xxxxxxxxx Xxxxxx Fremont, LLC BB&T Capital MarketsCA 94555 XXXXXXX XXXXX & ASSOCIATES, a division of BB&T Securities, LLC INC. As Representatives Representative of the Several Underwriters xc/x Xxxxxx, Xxxxxxxx o Raymond Xxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland ExpressAssociates, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned880 Carillon Parkway St. Petersburg, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).FL 33716
Appears in 1 contract
Samples: Underwriting Agreement (Asterias Biotherapeutics, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ Underwriter’s research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters Underwriter with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ Underwriter’s independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or by the Selling Stockholder by any Underwriter’s investment banking division. The Company and acknowledges that the Selling Stockholder acknowledge that each of the Underwriters Underwriter is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that If the foregoing correctly sets forth the agreement understanding between the Underwriter and the Company, please so indicate in the Selling Stockholder and the several Underwritersspace provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. Very truly yours, HEARTLAND EXPRESSECO-STIM ENERGY SOLUTIONS, INC. /s/ Xxxx X. Xxxxxxx By: Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of Accepted on the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I heretowritten. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESRXXX CAPITAL PARTNERS, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC ByName: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 TotalTitle: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit EXHIBIT A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX___________ __, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities201_ Rxxx Capital Partners, LLC BB&T Capital Markets800 Xxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxx, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx XX 00000 ReAttn: Heartland Express, Inc. - Lock-Up Agreement Managing Director Ladies and Gentlemen: The undersignedundersigned understands that Rxxx Capital Partners, LLC (the “Underwriter”) proposes to enter into an officer and/or director of Heartland ExpressUnderwriting Agreement (the “Underwriting Agreement”) with Eco-Stim Energy Solutions, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a the public offering (the “Public Offering”) by the Underwriter of Shares __________ shares of common stock (as defined in “Firm Shares”), par value $0.001 per share, of the Underwriting AgreementCompany (the “Shares”). In consideration of To induce the agreement by Underwriter to continue its efforts in connection with the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledgedPublic Offering, the undersigned hereby agrees that, without the prior written consent of the Underwriter, it will not, during the period beginning commencing on the date hereof and ending on the date that is 90 180 days from after the date of the final prospectus (the “Prospectus”) relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that(1) offer, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offerpledge, sell, contract to sell, pledgegrant, lend, grant any option to purchase, make any short sale or otherwise transfer or dispose of of, directly or indirectly, any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, Shares or any securities convertible into, into or exercisable or exchangeable for Shares, or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian2) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in enter into any hedging swap or other transaction arrangement that is designed transfers to result inanother, in whole or that reasonably could be expected to lead toin part, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s economic consequences of ownership of the Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Shares or with respect to any security that includessuch other securities, relates to in cash or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Sharesotherwise. Notwithstanding the foregoing, the undersigned may, during may transfer Shares without the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member prior consent of the immediate family Underwriter in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the undersignedPublic Offering, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (iino filing under Section 16(a) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of Shares or other securities acquired in such open market transactions, (b) if the undersigned is an individual, transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no other public filing or report regarding such transfer under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the Lock-Up up Period, (c) transfer of Shares to a charity or educational institution, (d) if the undersigned is, or directly or indirectly controls, a corporation, partnership, limited liability company or other business entity, any transfers of Shares to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned, as the case may be, if, in any such case, such transfer is not for value, or (e) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer of Shares made by the undersigned (i) in connection with the sale or other bona fide transfer in a single transaction of all or substantially all of the undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigned’s assets, in any such case not undertaken for the purpose of avoiding the restrictions imposed by this agreement or (ii) to another corporation, partnership, limited liability company or other business entity so long as the transferee is an affiliate of the undersigned and such transfer is not for value. For purposes Notwithstanding the foregoing, if (x) the Company issues an earnings release or material news, or a material event relating to the Company occurs, during the last 17 days of this the Lock-Up AgreementPeriod, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As (y) prior to the expiration of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement Period, the Undersigned’s Shares Company announces that it will not berelease earnings results during the 16-day period beginning on the last day of the Lock-Up Period, pledgedthe restrictions imposed by this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, hypothecated, or granted as collateral or security for any obligationunless the Underwriter waives such extension in writing. [In addition, notwithstanding the foregoing, undersigned agrees that during the Lock-Up Period, without the undersigned may sell or otherwise dispose prior written consent of the UndersignedUnderwriter, it will not make any demand for or exercise any right with respect to the registration of any Shares or any security convertible into or exercisable or exchangeable for Shares. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares for except in compliance with this Agreement. No provision in this agreement shall be deemed to restrict or prohibit the purpose of raising proceeds to cover exercise or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred exchange by the undersigned as a result of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares, provided that the vesting, undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof unless otherwise permitted pursuant to stock plans disclosed in the Time terms of Sale Information this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a so-called “10b5-1” plan at any time (as defined in other than the Underwriting Agreement), provided that each such transfer shall occur on entry into or about the time modification of such vesting and shall be a plan in such a manner as to cause the sale of an amount of the Undersigned’s any Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s or any securities convertible into or exercisable or exchangeable for Shares during within the Lock-Up Period as a result of such sale or disposition, the Period). The undersigned shall include a statement in such report to the effect understands that the purpose of such sale or other disposition was to cover tax obligations Company and the Underwriter are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned in connection with the vesting of further understands that this agreement is irrevocable and shall be binding upon the undersigned’s restricted shares heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by ____________, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxxthe Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, who serves as trustee including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of several GRATs established by his motherwhich are subject to negotiation between the Company and the Underwriter. Very truly yours, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (iiName): (Address).
Appears in 1 contract
Samples: Underwriting Agreement (Eco-Stim Energy Solutions, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (ai) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (bii) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSBIOTIME, INC. By: /s/ Xxxx X. Xxxxxxx Xxxxxxxx Name: Xxxx X. Xxxxxxx Xxxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Firm Shares XxxxxxXxxxxxx Xxxxx & Associates, Inc. 4,537,038 Ladenburg Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Co. Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T 1,296,296 Chardan Capital Markets, a division of BB&T SecuritiesLLC 324,074 LifeSci Capital, LLC 650,000 324,074 Total: 3,250,000 Schedule 6,481,482 - 35 - SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressProspectus None. SCHEDULE III Persons Subject to Lock-up Xxxx Xxxxxxxx Xxx Xxxxxxx Xxxxxxx X. Xxxx Xxxxxxx Xxxxxxxx Xxxxxxxx Xxxxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxxx Xxx Xxxxxxxxx Xxx Xxxxxx Xxxxxx X. Xxxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx X. Xxxxxxx Xxxxxxx Xxxxxx Xxxxx X. Xxxxxxx Xxxxx Xxxxxxxxx Greenbelt Corp. Greenway Partners, L.P. Broadwood Capital, Inc. Broadwood Partners, L.P. EXHIBIT A - 38 - Form of Lock-Up up Agreement XXXXXX_______, XXXXXXXX 2017 BioTime, Inc. 0000 Xxxxxxxx Xxxxxx, #000 Xxxxxxx, Xxxxxxxxxx 00000 XXXXXXX XXXXX & COMPANYASSOCIATES, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives Representative of the Several Underwriters xc/x Xxxxxxo Raymond Xxxxx & Associates, Inc. 000 Xxxxxxxx & CompanyXxxxxxx Xx. Xxxxxxxxxx, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx XX 00000 Re: Heartland ExpressBioTime, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, ) - Restriction on Stock Sales Dear Sirs: This letter is delivered to you pursuant to the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)) to be entered into by the Company, on behalf as issuer, and Xxxxxxx Xxxxx & Associates, Inc., the representative (the “Representative”) of the several Underwriters named in Schedule I to such agreement certain underwriters (collectively, the “Underwriters”)) to be named therein. Upon the terms and subject to the conditions of the Underwriting Agreement, with the Underwriters intend to effect a public offering of Common Stock, no par value per share, of the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling StockholderShares”), providing for a public offering as described in and contemplated by the registration statement of the Company on Form S-3, File No. 333-201824 (the “Public Registration Statement”), as filed with the Securities and Exchange Commission on February 2, 2015 (the “Offering”) ). The undersigned recognizes that it is in the best financial interests of Shares the undersigned, as an officer or director, or an owner of stock, options, warrants or other securities of the Company (the “Company Securities”), that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or may be, subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as defined in an inducement to the Underwriters to execute the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby acknowledges and agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not (i) offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale purchase or otherwise dispose of (collectively, a “Disposition”) any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common StockCompany Securities, or any securities convertible intointo or exercisable or exchangeable for, exchangeable for or any rights to purchase or otherwise acquire, any Company Securities held by the undersigned or acquired by the undersigned after the date hereof, or that represent the right may be deemed to receive shares of Common Stock, whether now be beneficially owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively collectively, the “Undersigned's Lock-Up Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession pursuant to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, Rules and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 Regulations promulgated under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), for a period commencing on the date hereof and no ending 90 days after the date of the final prospectus supplement filed pursuant to Rule 424(b) under the Act relating to the Offering, inclusive (the “Lock-Up Period”), without the prior written consent of the Representative or (ii) exercise or seek to exercise or effectuate in any manner any rights of any nature that the undersigned has or may have hereafter to require the Company to register under the Act the undersigned’s sale, transfer or other public filing disposition of any of the Lock-Up Shares or report regarding such transfer shall be required other securities of the Company held by the undersigned, or shall be voluntarily made to otherwise participate as a selling securityholder in any manner in any registration effected by the Company under the Act, including under the Registration Statement, during the Lock-Up Period. For purposes The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging, collar (whether or not for any consideration) or other transaction that is designed to or reasonably expected to lead or result in a Disposition of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, even if such Lock-Up Shares would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include any short sale or any purchase, sale or grant of any right (including any put or call option or reversal or cancellation thereof) with respect to any Lock-Up Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Lock-Up Shares. Notwithstanding the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds agreement not to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, make any Disposition during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect you have agreed that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).foregoing restrictions shall not apply to:
Appears in 1 contract
Samples: Underwriting Agreement (Biotime Inc)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s such Underwriters’ investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that If the foregoing correctly sets forth is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the agreement between the Company, the Selling Stockholder and the several Underwritersspace provided below. Very truly yours, HEARTLAND EXPRESSATP OIL & GAS CORPORATION By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: President Accepted: September 23, 2009 X.X. XXXXXX SECURITIES INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance For itself and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named listed in Schedule I 1 hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Xxx Xxxxxxx-Xxxxx Authorized Representative XXXXX FARGO SECURITIES, Signatory Executive Director CREDIT SUISSE SECURITIES (USA) LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division For itself and on behalf of BB&T SECURITIES, LLC the several Underwriters listed in Schedule 1 hereto. By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Signatory X. X. XXXXXX & COMPANY, INC. By: /s/ Xxxxxxxxx X. Xxxxxxx Authorized Signatory CANACCORD XXXXX INC. By: /s/ Xxxxxxxxx X. Xxxxxx Authorized Signatory FIG PARTNERS, LLC By: /s/ Xxxxxxxx X. Xxxxxxx Authorized Signatory GLOBAL HUNTER SECURITIES, LLC By: /s/ Xxxxxx X. Xxxxxxx, XX Authorized Signatory XXXXXX XXXX INCORPORATED By: /s/ Xxxxx X. Xxxxxxx, Xx. Authorized Signatory XXXXXXX RICE & COMPANY L.L.C. By: /s/ Xxxxxx X. Xxxxxxxx Authorized Signatory NATIXIS BLEICHROEDER INC. By: /s/ Xxxxx X. Xxxxxx XX Authorized Signatory XXXXXXXXX CAPITAL PARTNERS, LLC. By: /s/ Xxxx Xxxxxxxxxxx Authorized Signatory XXXXXX & XXXXXXX, LLC By: /s/ Xxxx X. Xxxxx III Authorized Signatory SMH CAPITAL, INC. By: /s/ Xxxxxxx X. Xxxxxxx Authorized Signatory XXXXXXXXXX SECURITIES, INC. By: /s/ Xxxxxx Gaia Authorized Signatory Schedule 1 Underwriter Number of Shares X.X. Xxxxxx Securities Inc. 1,987,500 Credit Suisse Securities (USA) LLC 1,987,500 Canaccord Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares XxxxxxInc. 145,750 Xxxxxxxxx Capital Partners, Xxxxxxxx LLC. 145,750 SMH Capital, Inc. 145,750 Xxxxxx Xxxx Incorporated 132,500 Xxxxxxx Rice & Company L.L.C. 132,500 Xxxxxxxxxx Securities, Inc. 132,500 X. X. Xxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo 106,000 Global Hunter Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities106,000 Natixis Bleichroeder Inc. 106,000 Xxxxxx & Xxxxxxx, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities106,000 FIG Partners, LLC BB&T Capital Markets, a division 66,250 Total 5,300,000 Annex A-1 [Form of BB&T Securities, LLC As Representatives Opinion of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing Counsel for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).]
Appears in 1 contract
Samples: Atp Oil & Gas Corp
Research Analyst Independence. The Company and the Selling Stockholder Shareholders acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Each of the Company and the Selling Stockholder Shareholders hereby waive waives and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and/or the Selling Stockholder Shareholders by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge Shareholders each acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Shareholders and the several Underwriters. Very truly yours, HEARTLAND EXPRESSSmartFinancial, INCInc. /s/ Xxxxxxx X. Xxxxxxx, Xx. /s/ Xxxx Xxxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice Xxxxxxx, Xx. President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDERSolely with respect to Sections 5.2, 6.2, 8 and 9 of this Agreement, the Selling Shareholders Named in Schedule II Hereto, Acting Severally By: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx Xxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee Xxxxxxx, Xx. Attorney-in-Fact CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxx Xxxxxx Name: Xxxxxxx Xxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESSCHEDULE I Name Number Firm Shares Xxxxxxx Xxxxx & Associates, Inc. 1,062,052 Xxxxx, Xxxxxxxx & Xxxxx, Inc. 354,016 Xxxxx Group, LLC By354,016 Total: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS1,770,084 SCHEDULE II Schedule of Selling Shareholders Selling Shareholder Number of Firm Shares to be Sold Xxxxxxx X. Xxxxxxx, a division of BB&T SECURITIESXx. 67,042 Xxxxxxx X. Xxxxxxx, LLC By: /s/ Xx. 82,042 Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total21,000 SCHEDULE III Public Offering Price per Share: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Underwriting Discount per Share: Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share Issuer Free Writing Prospectus [None] SCHEDULE IV Persons Subject to Lock-up Name Xxxxxx Xxxxxxx Xxxxxxx Xxxxx Xxxxxxx X. Xxxxxxx, Xx. Xxxxxxx X. Xxxxxxx, Xx. Xxxxxxx X. Xxxxx Xxxxxxxxx X. Xxxxxx C. Xxxxx Xxxxxxx Xxxxx X. Xxxxxx Xxxxx X. XxXxxxxx Xxx X. Xxxxxx Xxxxx Xxxx Xxxxx X. Xxxxx, M.D. Xxxx Xxxxx Xxxxxx X. Xxxxxxx Xxxxx X. Xxxxxx Xxxxxxxx X. Xxxxxxx EXHIBIT A Form of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressLock-up Agreement January 24, 2017 SmartFinancial, Inc. Lock-Up Agreement XXXXXX0000 Xxxxxxxx Xxxx, XXXXXXXX Xxxxx 000 Xxxxxxxxx, Xxxxxxxxx XXXXXXX XXXXX & COMPANYASSOCIATES, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives Representative of the Several Underwriters xc/x Xxxxxx, Xxxxxxxx o Raymond Xxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland ExpressAssociates, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned000 Xxxxxxxx Xxxxxxx Xx. Xxxxxxxxxx, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).XX 00000
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ X.X. Xxxxxx’x research analysts and research departments department are required to be independent from their respective the investment banking divisions division and are subject to certain regulations and internal policies policies, and (b) the Underwriters’ that X.X. Xxxxxx’x research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective the investment banking divisionsdivision. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters X.X. Xxxxxx with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ its independent research analysts and research departments may be different from or inconsistent with the views or advice advise communicated to the Company or the Selling Stockholder by any Underwriter’s X.X. Xxxxxx’x investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters X.X. Xxxxxx is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that [Signature Page Follows.] If the foregoing correctly sets forth is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the CompanyX.X. Xxxxxx, the Selling Stockholder Company and the several UnderwritersPartnership in accordance with its terms. Very truly yours, HEARTLAND EXPRESSPARKWAY PROPERTIES, INC. By /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx Xxxxxx X. Xxxxxx Title: Trustee President and CEO PARKWAY PROPERTIES LP By: Parkway Properties General Partners, Inc., its sole general partner By /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx Title: President and CEO CONFIRMED AND ACCEPTED, as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I heretowritten: X.X. XXXXXX SECURITIES INC. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: By /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Signatory EXHIBIT C COMPENSATION X.X. Xxxxxx Securities Inc. (“X.X. Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives ”) shall be paid compensation equal to 2% of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director gross proceeds from the sales of Heartland Express, Inc., a Nevada corporation (Securities pursuant to the “Company”), or one terms of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting this Agreement (the “Underwriting AgreementBase Commission”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).
Appears in 1 contract
Samples: Equity Distribution Agreement (Parkway Properties Inc)
Research Analyst Independence. The Company and the Selling Stockholder Operating Company acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Series B Preferred Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Operating Company hereby waive and release, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the Selling Stockholder Operating Company by any Underwriter’s investment banking division. The Company and the Selling Stockholder Operating Company acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature page follows.] Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Operating Company, the Manager and the several Underwriters. Very truly yours, HEARTLAND EXPRESSJXXXXXXX CAPITAL, INC. By: /s/ Xxxx X. Xxxxxxx Dxxx Xxxxxxxx Name: Xxxx X. Xxxxxxx Dxxx Xxxxxxxx Title: Chief Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDERJXXXXXXX CAPITAL OPERATING COMPANY, LLC By: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 Jxxxxxxx Capital, Inc., its managing member By: /s/ Dxxx Xxxxxxxx X. Xxxxxx Name: Dxxx Xxxxxxxx X. Xxxxxx Title: Trustee Chief Executive Officer JCAP ADVISORS, LLC By: /s/ Dxxx Xxxxxxxx Name: Dxxx Xxxxxxxx Title: Chief Executive Officer CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Jxxxx Xxxxx Authorized Representative XXXXX FARGO SECURITIES, MXXXXX SXXXXXX & CO. LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx Exxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Firm Shares XxxxxxRxxxxxx Jxxxx & Associates, Xxxxxxxx Inc. 637,500 Mxxxxx Sxxxxxx & CompanyCo. LLC 562,500 B. Xxxxx FBR, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T 150,000 BMO Capital Markets, a division of BB&T Securities, LLC 650,000 Markets Corp. 75,000 KeyBanc Capital Markets Inc. 75,000 Total: 3,250,000 Schedule II 1,500,000 Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Prospectus Issuer Free Writing Prospectus, dated January 19, 2018, and attached hereto as Schedule II-2. Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressTerm Sheet Filed Pursuant to Rule 433 Issuer Free Writing Prospectus dated January 19, 2018 Relating to Preliminary Prospectus Supplement dated January 18, 2018 to Prospectus dated June 24, 2016 Registration Statement No. 333-212049 Jxxxxxxx Capital, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re7.00% Series B Cumulative Redeemable Perpetual Preferred Stock Issuer: Heartland ExpressJxxxxxxx Capital, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “RepresentativesIssuer”) propose to enter into an Underwriting Agreement Securities Offered: 7.00% Series B Cumulative Redeemable Perpetual Preferred Stock (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public OfferingSeries B Preferred Stock”) of Shares Size: $37,500,000 (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the 1,500,000 shares) Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value Price / Liquidation Preference: $0.01 25.00 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).share
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, INC. /s/ Xxxx PARAGON COMMERCIAL CORPORATION By: Xxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice Xxxxxx President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Firm Shares XxxxxxXxxxxxx Xxxxx & Associates, Xxxxxxxx Inc. Sandler X’Xxxxx & CompanyPartners, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 L.P. Total: 3,250,000 Schedule SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Prospectus - Sch. II-1 - SCHEDULE III Testing-the-Waters Communications - Sch. III-1 - SCHEDULE IV Persons Subject to Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 up Directors Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxxxxx III Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Xx. Xxxxxx X. Xxxxxx K. Xxxxxx X. Xxxxx Xxxxxx Xxxx Xxxxxx X. Xxxxxx
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder TXO Parties acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the CompanyPartnership, the value of the Common Stock Units and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder TXO Parties hereby waive and release, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder TXO Parties by any Underwriter’s investment banking division. The Company and the Selling Stockholder TXO Parties acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt the Common Units or equity any other securities of the companies that are the subject of the transactions contemplated by this AgreementPartnership. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder TXO Parties and the several Underwriters. Very truly yours, HEARTLAND EXPRESSMorningStar Partners, INC. /s/ Xxxx X. Xxxxxxx L.P. By: MorningStar Oil & Gas, LLC, its general partner Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx MorningStar Oil & Gas, LLC Name: Xxxxxxxx X. Xxxxxx Title: Trustee TXO Energy GP, LLC Name: Title: CONFIRMED as of the date first above mentioned, on behalf for themselves and as Representatives of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXX XXXXX & ASSOCIATES, INC. By: Authorized Representative XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. BySCHEDULE I Underwriters Name: /s/ Number of Firm Units Number of Additional Units Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESXxxxx & Associates, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Inc. Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxxx Xxxxxxxxxx Xxxxx Fargo LLC Capital One Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Total SCHEDULE II
Appears in 1 contract
Samples: MorningStar Partners, L.P.
Research Analyst Independence. The Company and acknowledges that the Selling Stockholder acknowledge that (a) the Underwriters’ Underwriter’s research analysts and research departments department are required to be independent from their respective its investment banking divisions division and are subject to certain regulations and internal policies policies, and (b) the Underwriters’ that such Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering to which this Agreement relates that differ from the views of their respective its investment banking divisionsdivision. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters Underwriter with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ its independent research analysts and research departments department may be different from or inconsistent with the views or advice communicated to the Company or by the Selling Stockholder by any Underwriter’s investment banking division. The Company and acknowledges that the Selling Stockholder acknowledge that each of the Underwriters Underwriter is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that The provisions of the Underwriting Agreement are incorporated herein by reference and are deemed to be a part hereof, subject to any changes or amendments to the Underwriting Agreement as set forth above. If the foregoing correctly sets forth is in accordance with your understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding agreement between the Company, the Selling Stockholder Company and the several UnderwritersUnderwriter in accordance with its terms. Very truly yours, HEARTLAND EXPRESS, INC. GLOBALSANTAFE CORPORATION By: /s/ Xxxx Xxxxx X. Xxxxxxx XxXxxxxxx Name: Xxxx Xxxxx X. Xxxxxxx XxXxxxxxx Title: Executive Senior Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED General Counsel The foregoing Terms Agreement is hereby confirmed and accepted as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I heretowritten. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED Xxxxxx Brothers Inc. By: /s/ Xxxxx X. Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxx X. Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, Vice President SCHEDULE I Specified Subsidiaries Global Marine Inc. GlobalSantaFe Drilling Company Applied Drilling Technology Inc. Challenger Minerals Inc. GlobalSantaFe Drilling Operations Inc. GlobalSantaFe International Services Inc. GlobalSantaFe International Drilling Corporation GlobalSantaFe International Drilling Inc. GlobalSantaFe Operations (BVI) Inc. GlobalSantaFe South America LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II GlobalSantaFe Hungary Services Limited Liability Company GlobalSantaFe Drilling U.K. Limited SCHEDULE II(a) Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”None SCHEDULE II(b) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act Filings on Date of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Terms Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).None
Appears in 1 contract
Samples: Terms Agreement (Globalsantafe Corp)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the UnderwritersXxxxx Fargo Securities’ research analysts and research departments department are required to be independent from their respective the investment banking divisions division and are subject to certain regulations and internal policies policies, and (b) the Underwritersthat Xxxxx Fargo Securities’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective the investment banking divisionsdivision. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters Xxxxx Fargo Securities with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ its independent research analysts and research departments may be different from or inconsistent with the views or advice advise communicated to the Company or the Selling Stockholder by any Underwriter’s Xxxxx Fargo Securities’ investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters Xxxxx Fargo Securities is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that [Signature Page Follows.] If the foregoing correctly sets forth is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the CompanyXxxxx Fargo Securities, the Selling Stockholder Company and the several UnderwritersPartnership in accordance with its terms. Very truly yours, HEARTLAND EXPRESSPARKWAY PROPERTIES, INC. By /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx Xxxxxx X. Xxxxxx Title: Trustee President and CEO PARKWAY PROPERTIES LP By: Parkway Properties General Partners, Inc., its sole general partner By /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx Title: President and CEO CONFIRMED AND ACCEPTED, as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED Bywritten: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: By /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Signatory EXHIBIT C COMPENSATION Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives Securities shall be paid compensation equal to 2% of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director gross proceeds from the sales of Heartland Express, Inc., a Nevada corporation (Securities pursuant to the “Company”), or one terms of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting this Agreement (the “Underwriting AgreementBase Commission”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).
Appears in 1 contract
Samples: Equity Distribution Agreement (Parkway Properties Inc)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ each Underwriter’s research analysts and research departments departments, if any, are required to be independent from their respective its investment banking divisions division and are subject to certain regulations and internal policies policies, and (b) the Underwriters’ that such Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering Offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder hereby waive and release, to the fullest extent permitted by law, any claims that they may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters Underwriter is a full service securities firm and as such, such from time to time, subject to applicable securities laws, rules and regulations, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies Company; provided, however, that are nothing in this Section 9.9 shall relieve the subject Underwriter of the transactions contemplated by this Agreementany responsibility or liability it may otherwise bear in connection with activities in violation of applicable securities laws, rules or regulations. Please confirm that If the foregoing correctly sets forth the agreement understanding between the Underwriters and the Company, please so indicate in the Selling Stockholder and the several Underwritersspace provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. Very truly yours, HEARTLAND EXPRESSHARBOR CUSTOM DEVELOPMENT, INC. By: /s/ Xxxx X. Sxxxxxxx Xxxxxxx Name: Xxxx X. Sxxxxxxx Xxxxxxx Title: Chief Executive Vice President Officer, President, and Chairman of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED the Board of Directors Confirmed as of the date first written above mentioned, on behalf of itself and as Representative of the Representatives and the other several Underwriters named in on Schedule I 1 hereto. XXXXXX: ThinkEquity A division of Fordham Financial Management, XXXXXXXX & COMPANY, INCORPORATED Inc. By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INCPriyanka Mahajan Name: Priyanka Mahajan Title: Managing Director, Investment Banking [signature page] harbor custom development, inc. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETSunderwriting agreement SCHEDULE 1 Underwriter Total Number of Firm Shares to be Purchased Total Number of Firm Warrants to be Purchased Number of Option Shares to be Purchased if the Over- Allotment Option is Fully Exercised Number of Option Warrants to be Purchased if the Over-Allotment Option is Fully Exercised ThinkEquity, a division of BB&T SECURITIESFordham Financial Management, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx 1,200,000 3,600,000 180,000 540,000 TOTAL 1,200,000 3,600,000 180,000 540,000 Sch. 1 -1 SCHEDULE 2-A Pricing Information Number of Firm Shares: 3,250,000 1,200,000 Number of Additional Firm Warrants: 3,600,000 Number of Option Shares: 487,500 180,000 Number of Option Warrants: 540,000 Public Offering PricePrice per one Firm Share and three Firm Warrants: $23.75 25.00 Underwriting Discount per share one Share and three Warrants: $1.75 ($1.7479 per Share and $0.0007 per Warrant) Proceeds to Company per one Share and three Warrants (before expenses): $23.25 SCHEDULE 2-B Issuer General Use Free Writing Prospectuses SCHEDULE 2-C Written Testing-the-Waters Communications None. Sch. 2 -1 SCHEDULE 3 List of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Parties Sxxxxxxx Xxxxxxx Lxxxx Xxxxxxx Rxxxxxx Xxxxxxxxx Axxxx Xxxxx Jxxxxxx Xxxxxxxxxxx Rxxx Xxxxxx Lxxxx Xxxxx Wxxxx Xxxxxx Dxxxxx Xxxx The Gxxxxxx Investment Trust Kxxxx Xxxxxx EXHIBIT A-1 Form of Underwriter’s Warrant Agreement XXXXXX(8.0% Cumulative Convertible Series A Preferred Stock) THE REGISTERED HOLDER OF THIS UNDERWRITER’S WARRANT BY ITS ACCEPTANCE HEREOF, XXXXXXXX & AGREES THAT THIS UNDERWRITER’S WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED, OR BE THE SUBJECT OF ANY HEDGING, SHORT SALE, DERIVATIVE, PUT, OR CALL TRANSACTION THAT WOULD RESULT IN THE EFFECTIVE ECONOMIC DISPOSITION OF SUCH SECURITIES BY ANY PERSON FOR A PERIOD OF ONE HUNDRED AND EIGHTY (180) DAYS IMMEDIATELY FOLLOWING THE DATE OF EFFECTIVENESS OF THE PUBLIC OFFERING OF THE COMPANY’S SECURITIES PURSUANT TO REGISTRATION STATEMENT NO. 333-255229 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION, INCORPORATED XXXXXXXX EXCEPT IN ACCORDANCE WITH FINRA RULE 5110(e)(2). THIS UNDERWRITER’S WARRANT IS NOT EXERCISABLE PRIOR TO December 6, 2021. VOID AFTER 5:00 P.M., EASTERN TIME, June 9, 2026. UNDERWRITER’S WARRANT TO PURCHASE 8.0% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK HARBOR CUSTOM DEVELOPMENT, INC. Xxxxx Fargo SecuritiesWarrant Shares: 12,000 Initial Exercise Date: December 6, LLC BB&T Capital Markets2021 THIS UNDERWRITER’S WARRANT TO PURCHASE 8.0% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK (the “Underwriter’s Warrant”) certifies that, for value received, ThinkEquity, a division of BB&T SecuritiesFordham Financial Management, LLC As Representatives of Inc., or its assigns (the Several Underwriters x/x Xxxxxx“Holder”), Xxxxxxxx & Companyis entitled, Incorporated Xxx Xxxxx Xxxxxxupon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, 00xx Xxxxx Xxxxxxxxxat any time on or after December 6, Xxxxxxxx 00000 Re: Heartland Express2021 (the “Initial Exercise Date”) and, Inc. - Lock-Up Agreement Ladies in accordance with FINRA Rule 5110(g)(8)(A), prior to at 5:00 p.m. (New York time) on the date that is five (5) years following the Effective Date (the “Termination Date”) but not thereafter, to subscribe for and Gentlemen: The undersigned, an officer and/or director of Heartland Expresspurchase from Harbor Custom Development, Inc., a Nevada Washington corporation (the “Company”), or one up to 12,000 shares of its subsidiaries8.0% Series A Cumulative Convertible Preferred Stock, understands that Xxxxxxno par value per share, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement Company (the “Underwriting AgreementWarrant Shares”), on behalf as subject to adjustment hereunder. The purchase price of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) one share of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating 8.0% Series A Cumulative Convertible Preferred Stock under this Underwriter’s Warrant shall be equal to the Public Offering (the “Lock-Up Period”)Exercise Price, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii2(b).
Appears in 1 contract
Samples: Underwriting Agreement (Harbor Custom Development, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that If the foregoing correctly sets forth the agreement understanding between the Underwriters and the Company, please so indicate in the Selling Stockholder and the several Underwritersspace provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. Very truly yours, HEARTLAND EXPRESSPEAK RESORTS, INC. /s/ Xxxx X. Xxxxxxx By: Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of Accepted on the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I heretowritten. FBR CAPITAL MARKETS & CO. By: Name: Title: XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. ByName: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC ByTitle: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division For itself and as Representatives of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 the other Underwriters named on Schedule I Name hereto. SCHEDULE I Underwriter Number ofFirm of Initial Shares to be Purchased FBR Capital Markets & Co. Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Xxxxxx X. Xxxxx & Co. Incorporated Xxxxxx Xxxxxxxxxx Xxxxx LLC Xxxxxxxxxxx & Co. Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Total EXHIBIT A-1 Lock-Up Agreement XXXXXX, XXXXXXXX 2014 FBR Capital Markets & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Co. Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx c/o FBR Capital Markets & Co. 0000 00xx Xxxxxx Xxxxx Xxxxxx, 00xx Xxxxx 0000 Xxxxxxxxx, Xxxxxxxx XX 00000 ReAttn: Heartland Express, Inc. - Lock-Up Agreement Syndicate Department Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, undersigned understands that FBR Capital Markets & Co. and Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital MarketsIncorporated (the each, a division of BB&T Securities, LLC (“Representative” and together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)) with Peak Resorts, on behalf of the several Underwriters named in Schedule I to such agreement (collectivelyInc., the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 a Missouri corporation (the “Selling StockholderCompany”), providing for a the public offering (the “Public Offering”) by the Representatives of Shares shares of common stock (as defined in “Firm Shares”), par value $0.01 per share, of the Underwriting AgreementCompany (the “Shares”). In consideration of To induce the agreement by Representatives to continue its efforts in connection with the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledgedPublic Offering, the undersigned hereby agrees that, without the prior written consent of the Representatives, it will not, during the period beginning commencing on the date hereof and ending on the date that is 90 180 days from after the date of the final prospectus (the “Prospectus”) relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that(1) offer, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offerpledge, sell, contract to sell, pledgegrant, lend, grant any option to purchase, make any short sale or otherwise transfer or dispose of of, directly or indirectly, any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, Shares or any securities convertible into, into or exercisable or exchangeable for Shares, or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian2) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in enter into any hedging swap or other transaction arrangement that is designed transfers to result inanother, in whole or that reasonably could be expected to lead toin part, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s economic consequences of ownership of the Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Shares or with respect to any security that includessuch other securities, relates to in cash or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Sharesotherwise. Notwithstanding the foregoing, the undersigned may, during may transfer Shares without the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member prior consent of the immediate family Representatives in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the undersignedPublic Offering, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (iino filing under Section 16(a) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of Shares or other securities acquired in such open market transactions, (b) transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no other public filing or report regarding such transfer under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the Lock-Up up Period. For purposes , (c) transfer of this Lock-Up AgreementShares to a charity or educational institution, “immediate family” shall mean or (d) if the undersigned, directly or indirectly, controls a corporation, partnership, limited liability company or other business entity, any relationship by bloodtransfers of Shares to any shareholder, marriage partner or adoptionmember of, not more remote than first cousin. As or owner of the date hereofsimilar equity interests in, the Undersigned’s Shares are notundersigned, and for as the duration of this Lock-Up Agreement the Undersigned’s Shares will not case may be, pledgedif, hypothecatedin any such case, or granted as collateral or security such transfer is not for any obligationvalue. [In addition, notwithstanding the foregoing, undersigned agrees that during the Lock-Up Period, without the undersigned may sell or otherwise dispose prior written consent of the UndersignedRepresentatives, it will not make any demand for or exercise any right with respect to the registration of any Shares or any security convertible into or exercisable or exchangeable for Shares. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares for except in compliance with this Agreement. No provision in this agreement shall be deemed to restrict or prohibit the purpose of raising proceeds to cover exercise or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred exchange by the undersigned as a result of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares, provided that the vesting, undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up Period, unless otherwise permitted pursuant to the terms of restricted this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a so-called “10b5-1” plan at any time (other than the entry into or modification of such a plan in such a manner as to cause the sale of any Shares or any securities convertible into or exercisable or exchangeable for Shares within the Lock-Up Period). The undersigned understands that the Company and the Representatives are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by March 31, 2015, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Representatives. Very truly yours, (Name): (Address) EXHIBIT A-2 Lock-Up Agreement , 2014 FBR Capital Markets & Co. Xxxxxx, Xxxxxxxx & Company, Incorporated c/o FBR Capital Markets & Co. 0000 00xx Xxxxxx Xxxxx Xxxxx 0000 Xxxxxxxxx, XX 00000 Attn: Syndicate Department The undersigned understands that FBR Capital Markets & Co. and Xxxxxx, Xxxxxxxx & Company, Incorporated (the each, a “Representative” and together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Peak Resorts, Inc., a Missouri corporation (the “Company”), providing for the public offering (the “Public Offering”) by the Representatives of shares of Common Stock outstanding common stock (“Firm Shares”), par value $0.01 per share, of the Company (the “Shares”). To induce the Representatives to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of the Representatives, it will not, during the period commencing on the date hereof pursuant and ending 180 days after the date of the final prospectus (the “Prospectus”) relating to stock plans disclosed the Public Offering (the “Lock-Up Period”), (1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any Shares or any securities convertible into or exercisable or exchangeable for Shares, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the Time economic consequences of Sale Information ownership of the Shares, whether any such transaction described in clause (as defined 1) or (2) above is to be settled by delivery of Shares or such other securities, in cash or otherwise. Notwithstanding the Underwriting Agreement)foregoing, the undersigned may transfer Shares without the prior consent of the Representatives in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the Public Offering, provided that each such transfer shall occur on or about no filing under Section 16(a) of the time Securities Exchange Act of such vesting and 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of an amount of the Undersigned’s Shares that raises gross proceeds thator other securities acquired in such open market transactions, as nearly as reasonably practicable, approximate such tax liability, and provided further that (b) if the undersigned is required an individual, transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to make a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no filing under Section 16(a) of the Exchange Act Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the UndersignedLock-up Period, (c) transfer of Shares to a charity or educational institution, (d) if the undersigned is, or directly or indirectly controls, a corporation, partnership, limited liability company or other business entity, any transfers of Shares to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned, as the case may be, if, in any such case, such transfer is not for value, or (e) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer of Shares made by the undersigned (i) in connection with the sale or other bona fide transfer in a single transaction of all or substantially all of the undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigned’s assets, in any such case not undertaken for the purpose of avoiding the restrictions imposed by this agreement or (ii) to another corporation, partnership, limited liability company or other business entity so long as the transferee is an affiliate of the undersigned and such transfer is not for value. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares except in compliance with this Agreement. No provision in this agreement shall be deemed to restrict or prohibit the exercise or exchange by the undersigned of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares, provided that the undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up Period as Period, unless otherwise permitted pursuant to the terms of this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a result so-called “10b5-1” plan at any time (other than the entry into or modification of such sale or disposition, the undersigned shall include a statement plan in such report a manner as to cause the effect sale of any Shares or any securities convertible into or exercisable or exchangeable for Shares within the Lock-Up Period). The undersigned understands that the purpose of such sale or other disposition was to cover tax obligations Company and the Representatives are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned in connection with the vesting of further understands that this agreement is irrevocable and shall be binding upon the undersigned’s restricted shares heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by March 31, 2015, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxxthe Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, who serves as trustee including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of several GRATs established by his motherwhich are subject to negotiation between the Company and the Representatives. Very truly yours, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (iiName): (Address) ANNEX 1 Subsidiaries Subsidiary Jurisdiction(s).
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, INC. ADAMIS PHARMACEUTICALS CORPORATION /s/ Xxxx Dxxxxx X. Xxxxxxx Xxxxx Name: Xxxx Dxxxxx X. Xxxxxxx Xxxxx Title: Executive Vice President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Jxxxxx Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm of Firm Shares XxxxxxRxxxxxx Jxxxx & Associates, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, 14,516,129 Maxim Group LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 1,612,903 Total: 3,250,000 Schedule 16,129,032 SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Prospectus None. SCHEDULE III Persons Subject to Lock-Up up Dxxxxx X. Xxxxx, Ph.D Rxxxxxx X. Xxxxxxxx Dxxxx X. Xxxxxxxxx Rxxxxx X. Xxxxxxx Kxxxx X. Xxxxxxx Rxxxxx X. Xxxx, M.D. Rxxxxxx X. Xxxxx Hxxxxx X. Xxxxxxxx EXHIBIT A Form of Lock-up Agreement XXXXXX___, XXXXXXXX 2020 Adamis Pharmaceuticals Corporation 10000 Xx Xxxxxx Xxxx, Xxxxx 000 Xxx Xxxxx, Xxxxxxxxxx 00000 RXXXXXX JXXXX & COMPANYASSOCIATES, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives Representative of the Several Underwriters xc/x Xxxxxxo Raymond Jxxxx & Associates, Inc. 800 Xxxxxxxx & CompanyXxxxxxx Xx. Xxxxxxxxxx, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx XX 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).:
Appears in 1 contract
Samples: Underwriting Agreement (Adamis Pharmaceuticals Corp)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, BYRNA TECHNOLOGIES INC. /s/ Bxxxx Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice Bxxxx Xxxx, President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Gxxxxxxx Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Underwriter Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressShares Rxxxxxx Jxxxx & Associates, Inc. 1,625,000 B. Xxxxx Securities, Inc. 500,000 Ladenburg Txxxxxxx & Co. Inc. 375,000 Total 2,500,000 - 32 - SCHEDULE II Issuer Free Writing Prospectus EXHIBIT A Form of Lock-Up up Agreement XXXXXX_______, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX 2021 BYRNA TECHNOLOGIES INC. 100 Xxxxx Fargo SecuritiesXxxx, LLC BB&T Capital MarketsSuite 115 Andover, a division of BB&T SecuritiesMA 01810 RXXXXXX JXXXX & ASSOCIATES, LLC INC. As Representatives Representative of the Several Underwriters xc/x Xxxxxx, Xxxxxxxx o Raymond Jxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland ExpressAssociates, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned800 Xxxxxxxx Xxxxxxx Xx. Xxxxxxxxxx, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).XX 00000
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge Partnership acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock TEPPCO Entities and/or the offering that differ from the views of their respective investment banking divisions. The Company Partnership hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Partnership may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder Partnership by any Underwriter’s such Underwriters’ investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge Partnership acknowledges that each of the Underwriters is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that If the foregoing correctly sets forth is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between among the Company, the Selling Stockholder Partnership and the several Underwriters. Very truly yours, HEARTLAND EXPRESSTEPPCO PARTNERS, INC. L.P. By: Texas Eastern Products Pipeline Company, LLC, its General Partner By: /s/ Xxxx Xxxxxxx X. Xxxxxxx Xxxxxx Name: Xxxx Xxxxxxx X. Xxxxxxx Xxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED The foregoing Agreement is hereby confirmed and accepted as of the date first above mentioned, on behalf of the Representatives written above. Citigroup Global Markets Inc. By: /s/ Xxxxxx Xxxxxxxxxx Name: Xxxxxx Xxxxxxxxxx Title: Vice President Xxxxxx Brothers Inc. By: /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx Title: Managing Director For themselves and the other several Underwriters named in Schedule I heretoto the foregoing Agreement. XXXXXXSCHEDULE I Underwriters Number of Firm Units to be Purchased Citigroup Global Markets Inc. 1,150,000 Xxxxxx Brothers Inc. 1,150,000 UBS Securities LLC 550,000 X.X. Xxxxxxx & Sons, XXXXXXXX Inc. 475,000 Wachovia Capital Markets, LLC 475,000 Xxxxxxx Xxxxx & COMPANYAssociates, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Inc. 300,000 RBC Capital Markets Corporation 300,000 Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T 300,000 KeyBanc Capital Markets, a division of BB&T SecuritiesMcDonald Investments Inc. 300,000 Total 5,000,000 SCHEDULE II SUBSIDIARIES TEPPCO Terminals Company, L.P. TEPPCO Interests, LLC 650,000 TotalTG Pipeline GP, LLC TG Pipeline LP, LLC TG Pipeline, L.P. TEPPCO NGL Pipelines, LLC Chaparral Pipeline Company, X.X. Xxxx Pipeline Company, L.P. Panola Pipeline Company, L.P. Quanah Pipeline Company, L.P. Val Verde Gas Gathering Company, X.X. Xxxxxx Pipeline Company, L.P. Jonah Gas Gathering Company Jonah Gas Marketing, LLC TEPPCO Colorado, LLC TEPPCO Crude GP, LLC TEPPCO Crude Oil, L.P. Lubrication Services, L.P. TEPPCO Crude Pipeline, L.P. TEPPCO Seaway, L.P. SCHEDULE III LOCK-UP AGREEMENTS Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx W. Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxx Xxxxx X. Xxxxxxxx Xxxxxx X. Xxxxx J. Xxxxxxx Xxxxxxxx Xxxx X. Xxxxxxxxxxx Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxx Xxxxxxx X. XxXxxx Xxxxxxx Xxxxxxxx C. Xxxxx Xxxxxxx SCHEDULE IV SIGNIFICANT SUBSIDIARIES TE Products Pipeline Company, Limited Partnership Jonah Gas Gathering Company TEPPCO GP, Inc. TEPPCO Midstream Companies, L.P. Val Verde Gas Gathering Company, L.P. TEPPCO NGL Pipelines, LLC TEPPCO Crude Pipeline, L.P. TEPPCO Crude GP, LLC TCTM, L.P. TEPPCO Crude Oil, L.P. TEPPCO Seaway, L.P. SCHEDULE V Underwriting Agreement dated June 28, 2006 Registration Statement No. 333-110207 Representatives: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Citigroup Global Markets Inc. and Xxxxxx Brothers Inc. Title, Purchase Price and Description of Securities: Title: Units representing limited partner interests Number of Firm SharesUnits to be sold by the Partnership: 3,250,000 5,000,000 Number of Additional SharesOption Units to be sold by the Partnership: 487,500 750,000 Price per Unit to Public Offering Price(include accrued dividends, if any): $35.50 Price per Unit to the Underwriters — total: $23.75 per share 34.08 Other provisions: Prior to the purchasing of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressUnits being offered pursuant to the Final Prospectus, Inc. Lock-Up Agreement XXXXXXbetween June 26 and June 28, XXXXXXXX & COMPANY2006, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives one of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)purchased, on behalf of the several Underwriters named underwriting syndicate, 160,000 LP Units at an average price of $35.6703 per LP Unit in Schedule I stabilizing transactions. Closing Date, Time and Location: July 5, 2006 at 10:00 a.m. at Xxxxx Xxxxx L.L.P., One Shell Plaza, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 Type of Offering: Non-Delayed Date referred to such agreement (collectively, in Section 5(i) after which the “Underwriters”), with Partnership may offer or sell securities issued by the Company and Partnership without the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration consent of the agreement by the Underwriters Representative(s): August 27, 2006 Modification of items to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).the letter from KPMG LLP delivered pursuant to Section 6(e) at the Execution Time: None SCHEDULE VI Schedule of Free Writing Prospectuses included in the Disclosure Package Free Writing Prospectus filed by the Partnership with the Commission on June 28, 2006 Exhibit A Form of Opinion of Xxxxx Xxxxx L.L.P.
Appears in 1 contract
Samples: Teppco Partners Lp
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ Xxxxxxx Xxxxx’x research analysts and research departments department are required to be independent from their respective the investment banking divisions division and are subject to certain regulations and internal policies policies, and (b) the Underwriters’ that Xxxxxxx Xxxxx’x research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective the investment banking divisionsdivision. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters Xxxxxxx Xxxxx with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ its independent research analysts and research departments may be different from or inconsistent with the views or advice advise communicated to the Company or the Selling Stockholder by any Underwriter’s Xxxxxxx Xxxxx’x investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters Xxxxxxx Xxxxx is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that [Signature Page Follows.] If the foregoing correctly sets forth is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the CompanyXxxxxxx Xxxxx, the Selling Stockholder Company and the several UnderwritersPartnership in accordance with its terms. Very truly yours, HEARTLAND EXPRESSPARKWAY PROPERTIES, INC. By /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx Xxxxxx X. Xxxxxx Title: Trustee President and CEO PARKWAY PROPERTIES LP By: Parkway Properties General Partners, Inc., its sole general partner By /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx Title: President and CEO CONFIRMED AND ACCEPTED, as of the date first above mentionedwritten: XXXXXXX LYNCH, on behalf PIERCE, XXXXXX & XXXXX INCORPORATED By /s/ Xxxx Xxxxxxxx Authorized Signatory EXHIBIT C COMPENSATION Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) shall be paid compensation equal to 2% of the Representatives and gross proceeds from the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division sales of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division Securities pursuant to the terms of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting this Agreement (the “Underwriting AgreementBase Commission”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).
Appears in 1 contract
Samples: Equity Distribution Agreement (Parkway Properties Inc)
Research Analyst Independence. The Company and the Selling Stockholder TXO Parties acknowledge that (a) the Underwriters’ Underwriter’s research analysts and research departments are required to be independent from their respective its investment banking divisions division and are subject to certain regulations and internal policies and (b) the Underwriters’ Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the CompanyPartnership, the value of the Common Stock Units and/or the offering that differ from the views of their respective investment banking divisionsdivision. The Company and the Selling Stockholder TXO Parties hereby waive and release, to the fullest extent permitted by law, any claims that they it may have against the Underwriters Underwriter with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ Underwriter’s independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or TXO Parties by the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder TXO Parties acknowledge that each of the Underwriters Underwriter is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt the Common Units or equity any other securities of the companies that are the subject of the transactions contemplated by this AgreementPartnership. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder TXO Parties and the several UnderwritersUnderwriter. Very truly yours, HEARTLAND EXPRESSTXO Partners, INC. L.P. By: TXO Partners GP, LLC, its general partner /s/ Xxxxx X. Xxxx X. Xxxxxxx Name: Xxxxx X. Xxxx X. Xxxxxxx Title: Executive Vice President of Finance Business Operations and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 TXO Partners GP, LLC /s/ Xxxxxxxx Xxxxx X. Xxxxxx Xxxx Name: Xxxxxxxx Xxxxx X. Xxxxxx Xxxx Title: Trustee President of Business Operations and Chief Financial Officer CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I heretoas Underwriter. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II (a) Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Prospectuses
Appears in 1 contract
Samples: TXO Partners, L.P.
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s such Underwriters’ investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this AgreementAgreement and the General Disclosure Package. Please confirm that If the foregoing correctly sets forth is in accordance with your understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding agreement between among the Company, the Selling Stockholder Securityholder and the several UnderwritersUnderwriters in accordance with its terms. Very truly yours, HEARTLAND EXPRESSLaureate Education, INC. Inc. By: /s/ Xxxx Xxxxxxxx Xxxxxx Name: Xxxxxxxx Xxxxxx Title: SVP, Chief Legal Officer and Corporate Secretary Wengen Alberta, Limited Partnership By: Wengen Investments Limited, its General Partner By: /s/ Xxxxxx X. Xxxxxxx Name: Xxxx Xxxxxx X. Xxxxxxx Title: Executive Vice President of Finance Director The foregoing Underwriting Agreement is hereby confirmed and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED accepted as of the date first above mentioned, written. Acting on behalf of itself and as the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) By: BMO Capital Markets Corp. By: /s/ Xxxx Xxxxxxxx Name: Xxxx Xxxxxxxx Title: Managing Director SCHEDULE A Underwriter Number of Shares (as defined in the Underwriting Agreement). In consideration Firm Securities Number of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Optional Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).BMO Capital Markets Corp. 10,000,000 1,500,000 Total 10,000,000 1,500,000 SCHEDULE B
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder Stockholders acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Shares and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Stockholders each hereby waive waives and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and/or the Selling Stockholder Stockholders by any Underwriter’s investment banking division. The Company and the Selling Stockholder Stockholders each acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Stockholders and the several Underwriters. Any person executing and delivering this Agreement as Attorney-in-Fact for a Selling Stockholder represents by so doing that he has been duly appointed as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and binding Power of Attorney that authorizes such Attorney-in-Fact to take such action. Very truly yours, HEARTLAND EXPRESSMALIBU BOATS, INC. /s/ Xxxx Xxxxx X. Xxxxxxx Name: Xxxx Xxxxxx Xxxxx X. Xxxxxxx Title: Executive Vice President of Finance and Xxxxxx, Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 Selling Stockholders identified in Schedule II /s/ Xxxxxxxx Xxxxx X. Xxxxxx Name: Xxxxxxxx Xxxxx X. Xxxxxx Title: Trustee Xxxxxx, as Attorney-in-Fact acting on behalf of each of the Selling Stockholders named in Schedule II to this Agreement CONFIRMED as of the date first above mentionedMentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx X. Xxxxxxxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Xxxxxx, Director Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETSSUNTRUST XXXXXXXX XXXXXXXX, a division of BB&T SECURITIES, LLC INC. By: /s/ Xxxxxxx X. Xxxxx Xxxx Xxxxx, Managing Director Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 [Signature Page to the Underwriting Agreement] SCHEDULE I Schedule I of Underwriters Name Number ofFirm of Firm Shares XxxxxxXxxxxxx Xxxxx & Associates, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 1,476,878 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets1,285,752 SunTrust Xxxxxxxx Xxxxxxxx, a division of BB&T Securities, Inc. 625,500 X. Xxxxx & Co. LLC 650,000 86,875 Total: 3,250,000 3,475,005 SCHEDULE II Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information of Selling Stockholders Stockholder Number of Firm Shares: 3,250,000 Shares Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressShares Black Canyon Direct Investment Fund, Inc. LockLP 1,127,295 169,094 BC-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo SecuritiesMB GP 103,768 15,565 Canyon Value Realization Master Fund LP 780,083 117,012 Canyon Value Realization Fund LP 139,741 20,961 Loudon Partners, LLC BB&T Capital Markets112,084 16,813 Xxxxxx Revocable Trust 4,344 652 Jewish Community Foundation of the Jewish Federation Council of Greater Los Angeles 82,537 12,381 Xxxxxxx X. Xxxxx 21,858 3,278 Xxxxxx X. Xxxxxx 6,338 951 Xxxxx X. Xxxxx 5,607 841 Xxxxxxxxxxx Xxxxxx 468 70 Xxxxxxx Xxxxx 2,438 366 Xxxxxxx X. Xxxxxx 4,632 695 Malibu Holdings, a division of BB&T SecuritiesLP 221,585 33,238 Horizon Holdings, LLC As Representatives of the Several Underwriters x/x 334,599 50,190 Xxxxxxx X. Xxxxxxxx 25,378 3,805 Xxxx X. XxXxxx 13,043 1,957 Xxxxxx X. Xxxxxxxx 2,354 353 Xxxxxxx X. Xxxx 4,172 626 Merced OKR, LLC 319,795 47,969 Gateway Community Church 37,957 5,693 Xxxx X. Xxxxxx 58,556 8,783 Xxxxx X. Xxxxx 11,106 1,666 Xxxxx Xxxxxxx 27,970 4,196 Xxxxx Xxxx Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xx 8,344 1,252 Xxxx Xxxxxxx Xxxx 4,172 626 Xxxxx Xxxxxx, 00xx X. True 4,172 626 Faith Promise Church 4,348 000 Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 ReXxxxxxx Xxxxxx Xxxxxxxxxxx 6,261 939 Total: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).3,475,005 521,250 SCHEDULE III
Appears in 1 contract
Samples: Malibu Boats, Inc.
Research Analyst Independence. The Company and the Selling Stockholder Operating Partnership acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Class A Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Operating Partnership hereby waive and release, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and/or the Selling Stockholder Operating Partnership by any Underwriter’s investment banking division. The Company and the Selling Stockholder Operating Partnership acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSCATCHMARK TIMBER TRUST, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Xxxxx Xxxxx Title: Chief Executive Vice Officer and President of Finance and Chief Financial Officer SELLING STOCKHOLDERCATCHMARK TIMBER OPERATING PARTNERSHIP, L.P. By: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Catchmark Timber Trust, Inc. Its: General Partner Name: Xxxxxxxx X. Xxxxxx Xxxxx Xxxxx Title: Trustee CONFIRMED Chief Executive Officer and President Confirmed as of the date first above mentioned: XXXXXXX XXXXX & ASSOCIATES, on behalf of the Representatives INC. By: Authorized Representative XXXXXX X. XXXXX & CO. INCORPORATED By: Authorized Representative XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: Authorized Representative For themselves and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).
Appears in 1 contract
Samples: Underwriting Agreement (CatchMark Timber Trust, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, INCINVIVO THERAPEUTICS HOLDINGS CORP. /s/ Xxxx Xxxxxx X. Xxxxxxx XxXxxxxxxx Name: Xxxx Xxxxxx X. Xxxxxxx XxXxxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESSCHEDULE I Number Number Name Firm Shares Firm Warrants Xxxxxxx Xxxxx & Associates, LLC ByInc. 2,893,333 1,446,666 Ladenburg Xxxxxxxx & Co. Inc. 466,667 233,333 Cantor Xxxxxxxxxx & Co. 373,333 186,667 Total: /s/ 3,733,333 1,866,666 SCHEDULE II Issuer Free Writing Prospectus None. SCHEDULE III Persons Subject to Lock-up Xxxx Xxxxxx Xxxxxx Xxxxx Xxxxxxxx Xxxxxxx Xxxxxx Authorized Representative Xxxxx XxXxxxxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxx Xxxx XxXxxxxx Xxxxxxx XxXxxxxx Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx Xxxxxxx Xxx Xxxxxxxxxx EXHIBIT A Form of Lock-up Agreement , 2016 INVIVO THERAPEUTICS HOLDINGS CORP. Xxx Xxxxxxx Xxxxxx, Xxxxxxxx Suite B14402 Cambridge, MA 02139 XXXXXXX XXXXX & CompanyASSOCIATES, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives Representative of the Several Underwriters xc/x Xxxxxx, Xxxxxxxx o Raymond Xxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland ExpressAssociates, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned000 Xxxxxxxx Xxxxxxx Xx. Xxxxxxxxxx, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).XX 00000
Appears in 1 contract
Samples: Underwriting Agreement (Invivo Therapeutics Holdings Corp.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Class A Common Stock and/or the offering Offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt the Class A Common Stock or equity any other securities of the companies that are the subject of the transactions contemplated by this AgreementCompany. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSBOUNTY MINERALS, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee Chief Executive Officer and President CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I heretoUnderwriters. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES[Signature Page to Underwriting Agreement] SCHEDULE I Underwriters Name: Number of Firm Shares Number of Additional Shares Xxxxxxx Xxxxx & Associates, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Inc. Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Total SCHEDULE II
Appears in 1 contract
Samples: Bounty Minerals, Inc.
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering and sale of the Shares that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, INC. VOLITIONRX LIMITED /s/ Xxxx X. Xxxxxxx Xxxxxxxx Name: Xxxx X. Xxxxxxx Xxxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CEO CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm of Firm Shares XxxxxxNumber of Additional Shares Xxxxxxx Xxxxx & Associates, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities2,638,462 395,769 National Securities Corporation 753,846 000,000 Xxxx Xxxxxx Xxxxxxx Xxxxxxx, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule 376,923 56,538 Total 3,769,231 565,384 - 21 - SCHEDULE II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Price per share to the public: $3.25 Firm Shares: 3,250,000 Number of 3,769,231 Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express565,384 SCHEDULE III Persons Subject to Lock-up Xxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxxxxx Xxx Xxxxx Xxxxx Xxxxx Xxxxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxxxxx Concord International, Inc. Cotterford Company Limited EXHIBIT A Form of Lock-Up up Agreement XXXXXX_______, XXXXXXXX 2016 VolitionRx Limited 0 Xxxxxx Xxxx #00-00 Xxxx Xxxxxx Singapore 228208 XXXXXXX XXXXX & COMPANYASSOCIATES, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives Representative of the Several Underwriters xc/x Xxxxxxo Raymond Xxxxx & Associates, Inc. 000 Xxxxxxxx & CompanyXxxxxxx Xx. Xxxxxxxxxx, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx XX 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation VolitionRx Limited (the “"Company”), or one ) - Restriction on Sale of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, Company Securities Dear Sirs: This letter agreement is delivered to you pursuant to the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)) to be entered into by the Company, on behalf as issuer, and Xxxxxxx Xxxxx & Associates, Inc., the representative (the “Representative”) of the several Underwriters named in Schedule I to such agreement underwriters (collectively, the “Underwriters”)) to be named therein. Upon the terms and subject to the conditions of the Underwriting Agreement, with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for Underwriters intend to effect a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 0.001 per share share, of the Company (the “Common StockShares”), or any options or warrants pursuant to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations registration statement of the Securities and Exchange Commission Company on Form S-3 (collectively the “Undersigned's Shares”)File No. The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option333-206781) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities ActRegistration Statement”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported as filed with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance September 4, 2015, and the prospectus relating to the Offering to be filed with Section 16 the SEC pursuant to Rule 424(b) under the Securities Act of 1933, as amended, and included as part of the Securities Exchange Act of 1934, as amended Registration Statement (the “Exchange ActProspectus”). The undersigned recognizes that it is in the best interests of the undersigned, as an officer or director of the Company, or as an owner of the outstanding stock, options, warrants or other securities of the Company (collectively, the “Company Securities”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during that the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousinCompany complete the proposed Offering. As an inducement to the Underwriters to expend additional efforts towards completion of the date hereof, Offering and to execute the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up PeriodUnderwriting Agreement, the undersigned may sell or otherwise dispose of has agreed to enter into this letter agreement to assure the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds Underwriters that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if subject to the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or dispositionspecific exceptions described herein, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting Company Securities of the undersigned’s restricted shares , now held or hereafter acquired, will not enter the public market during a specified period of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee time following completion of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii)Offering.
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder Operating Partnership acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Operating Partnership hereby waive and release, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the Selling Stockholder Operating Partnership by any Underwriter’s investment banking division. The Company and the Selling Stockholder Operating Partnership acknowledge that each of the Underwriters is a full full-service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Execution Version Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Operating Partnership, the Manager and the several Underwriters. Very truly yours, HEARTLAND EXPRESSNEXPOINT REAL ESTATE FINANCE, INC. By: /s/ Xxxx X. Xxxxxxx Xxxxx Xxxxx Name: Xxxx X. Xxxxxxx Xxxxx Xxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDEROfficer, Executive VP-Finance, Secretary and Treasurer NEXPOINT REAL ESTATE FINANCE OPERATING PARTNERSHIP, L.P. By: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 NexPoint Real Estate Finance Operating Partnership GP, LLC By: /s/ Xxxxxxxx X. Xxxxxx Xxxxx Xxxxx Name: Xxxxxxxx X. Xxxxxx Xxxxx Xxxxx Title: Trustee Chief Financial Officer, Executive VP-Finance, Secretary and Treasurer NEXPOINT REAL ESTATE ADVISORS VII, L.P. By: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Chief Financial Officer, Executive VP-Finance, Secretary and Treasurer Signature Page to Underwriting Agreement of NexPoint Real Estate Finance, Inc. CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Jozsi Popper Authorized Representative XXXXX FARGO SECURITIESSignature Page to Underwriting Agreement of NexPoint Real Estate Finance, LLC ByInc. Execution Version SCHEDULE I Name Principal Amount of Notes to be Purchase Xxxxxxx Xxxxx & Associates, Inc. $ 35,000,000 Total: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 $ 35,000,000 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II SCHEDULE II-1 Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation Term Sheet (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in attached hereto as Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting AgreementII-2). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx Schedule II-1 SCHEDULE III-1 [FORM OF OPINION OF WINSTON & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx XXXXXX LLP] [Winston & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, Xxxxxx LLP Letter Head] SCHEDULE III-2 [orFORM OF TAX OPINION OF WINSTON & XXXXXX LLP] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, SCHEDULE III-3 [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).FORM OF OPINION OF XXXXXXX XXXXX LLP]
Appears in 1 contract
Samples: Underwriting Agreement (NexPoint Real Estate Finance, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ each Underwriter’s research analysts and research departments departments, if any, are required to be independent from their respective its investment banking divisions division and are subject to certain regulations and internal policies policies, and (b) the Underwriters’ that such Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering Offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder hereby waive and release, to the fullest extent permitted by law, any claims that they may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters Underwriter is a full service securities firm and as such, such from time to time, subject to applicable securities laws, rules and regulations, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies Company; provided, however, that are nothing in this Section 9.9 shall relieve the subject Underwriter of the transactions contemplated by this Agreementany responsibility or liability it may otherwise bear in connection with activities in violation of applicable securities laws, rules or regulations. Please confirm that If the foregoing correctly sets forth the agreement understanding between the Underwriters and the Company, please so indicate in the Selling Stockholder and the several Underwritersspace provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. Very truly yours, HEARTLAND EXPRESSHARBOR CUSTOM DEVELOPMENT, INC. /s/ Xxxx X. Xxxxxxx By: Name: Xxxx X. Sxxxxxxx Xxxxxxx Title: Chief Executive Vice President Officer, President, and Chairman of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED the Board of Directors Confirmed as of the date first written above mentioned, on behalf of itself and as Representative of the Representatives and the other several Underwriters named in on Schedule I 1 hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, ThinkEquity LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETSName: Priyanka Mahajan Title: Managing Director, a division Investment Banking Harbor Custom Development, Inc. – Underwriting Agreement SCHEDULE 1 Underwriter Total Number of BB&T SECURITIES, Firm Shares to be Purchased Total Number of Firm Warrants to be Purchased Number of Option Shares to be Purchased if the Over- Allotment Option is Fully Exercised Number of Option Warrants to be Purchased if the Over-Allotment Option is Fully Exercised ThinkEquity LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx 2,400,000 12,000,000 360,000 1,800,000 TOTAL 2,400,000 12,000,000 360,000 1,800,000 Sch. 1-1 SCHEDULE 2-A Pricing Information Number of Firm Shares: 3,250,000 2,400,000 Number of Additional Firm Warrants: 12,000,000 Number of Option Shares: 487,500 360,000 Number of Option Warrants: 1,800,000 Public Offering PricePrice per one Firm Share and five Firm Warrants: $23.75 15.00 Underwriting Discount per share one Share and five Warrants: $1.05 ($1.0465 per Share and $0.0007 per Warrant) Proceeds to Company per one Share and five Warrants (before expenses): $13.95 Initial exercise price of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressWarrants: $2.97 SCHEDULE 2-B Issuer General Use Free Writing Prospectuses Issuer Free Writing Prospectus, Inc. dated September 27, 2021 (Registration No. 333-259465) SCHEDULE 2-C Written Testing-the-Waters Communications None. Sch. 2-1 SCHEDULE 3 List of Lock-Up Agreement XXXXXXParties Sxxxxxxx Xxxxxxx Rxxxxxx Xxxxxxxxx Lxxxx Xxxxx Wxxxx Xxxxxx Dxxxxx Xxxx Kxxxx Xxxxxx Jxxxxxx Xxxxxxxxxxx The Gxxxxxx Investment Trust Cxxxx Xxxx Txx X’Xxxxxxxx Sch. 3-1 EXHIBIT A [RESERVED] EXHIBIT B ______________, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, 2021 ThinkEquity LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx 10 Xxxxx Xxxxxx, 00xx Xxxxx XxxxxxxxxXxx Xxxx, Xxxxxxxx XX 00000 Re: Heartland Express, Inc. - Lock-Up As Representative of the several Underwriters named on Schedule 1 to the Underwriting Agreement referenced below Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation undersigned understands that ThinkEquity LLC (the “CompanyRepresentative”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”)) with Harbor Custom Development, on behalf of the several Underwriters named in Schedule I to such agreement (collectivelyInc., the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 a Washington corporation (the “Selling StockholderCompany”), providing for a the public offering (the “Public Offering”) of Shares shares of cumulative convertible preferred stock, no par value per share (as defined in the Underwriting Agreement“Preferred Stock”), convertible into common stock, no par value, of the Company (the “Common Shares”). In consideration of To induce the agreement by Representative to continue its efforts in connection with the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledgedPublic Offering, the undersigned hereby agrees that, without the prior written consent of the Representative, the undersigned will not, during the period beginning commencing on the date hereof and ending on the date that is 90 days from after the date of the final prospectus relating to closing of the Public Offering (the “Lock-Up Period”), the undersigned agrees that(1) offer, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offerpledge, sell, contract to sell, pledgegrant, lend, grant any option to purchase, make any short sale or otherwise transfer or dispose of of, directly or indirectly, any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, Shares or any securities convertible into, into or exercisable or exchangeable for or that represent the right to receive shares of Common StockShares, whether now owned or hereinafter acquired, owned directly hereafter acquired by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within or hereafter acquires the rules and regulations power of disposition (collectively, the “Lock-Up Securities”); (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition economic consequences of ownership of the Undersigned’s Shares even if Lock-Up Securities, whether any such Shares would transaction described in clause (1) or (2) above is to be disposed settled by delivery of by someone other than the undersigned. Such prohibited hedging Lock-Up Securities, in cash or other transactions would include without limitation otherwise; (3) make any short sale demand for or any purchase, sale or grant of exercise any right (including without limitation any put or call option) with respect to the registration of any of Lock-Up Securities; or (4) publicly disclose the Undersigned’s Shares intention to make any offer, sale, pledge or with respect disposition, or to enter into any transaction, swap, hedge or other arrangement relating to any security that includesLock-Up Securities. Notwithstanding the foregoing, relates and subject to or derives any significant part of its value from such Shares. In additionthe conditions below, the undersigned agrees that, may transfer Lock-Up Securities without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Representative in connection with (a) transactions relating to Lock-Up Period, make any demand for, or exercise any right with respect to, Securities acquired in open market transactions after the registration completion of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, Public Offering; provided that the donee no filing under Section 13 or donees thereof agree to be bound in writing by the restrictions set forth herein, (iiSection 16(a) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no or other public filing or report regarding such transfer announcement shall be required or shall be voluntarily made during the in connection with subsequent sales of Lock-Up Period. For Securities acquired in such open market transactions; (b) transfers of Lock-Up Securities as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of the undersigned or a family member (for purposes of this Locklock-Up Agreementup agreement, “immediate familyfamily member” shall mean means any relationship by blood, marriage or adoption, not more remote than first cousin. As ); (c) transfers of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement Securities to a charity or educational institution; (d) if the Undersigned’s Shares will not beundersigned is a corporation, pledgedpartnership, hypothecatedlimited liability company or other business entity, or granted as collateral or security for (i) any obligation. [In addition, notwithstanding the foregoing, during the transfers of Lock-Up PeriodSecurities to another corporation, partnership or other business entity that controls, is controlled by or is under common control with the undersigned may sell or otherwise dispose (ii) distributions of Lock-Up Securities to members, partners, stockholders, subsidiaries or affiliates (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the Undersigned’s Shares undersigned; (e) if the undersigned is a trust, to a trustee or beneficiary of the trust; provided that in the case of any transfer pursuant to the foregoing clauses (b), (c) (d) or (e), (i) any such transfer shall not involve a disposition for value, (ii) each transferee shall sign and deliver to the purpose Representative a lock-up agreement substantially in the form of raising proceeds to cover this lock-up agreement and (iii) no filing under Section 13 or otherwise satisfying Section 16(a) of the reasonably estimated U.S. federal Exchange Act or state tax liability incurred other public announcement shall be required or shall be voluntarily made; (f) the receipt by the undersigned as a result from the Company of Common Shares upon the vesting of restricted stock awards or stock units or upon the exercise of options to purchase the Company’s Common Shares issued under an equity incentive plan of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed Company or an employment arrangement described in the Time of Sale Information Pricing Prospectus (as defined in the Underwriting Agreement)) (the “Plan Shares”) or the transfer of Common Shares or any securities convertible into Common Shares to the Company upon a vesting event of the Company’s securities or upon the exercise of options to purchase the Company’s securities, in each case on a “cashless” or “net exercise” basis or to cover tax obligations of the undersigned in connection with such vesting or exercise, but only to the extent such right expires during the Lock-up Period, provided that each such transfer shall occur on no filing under Section 13 or about Section 16(a) of the time of such vesting and Exchange Act or other public announcement shall be of an amount required or shall be voluntarily made within 90 days after the date of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liabilityclosing of the Public Offering, and provided further that after such 90th day, if the undersigned is required to make file a filing report under Section 13 or Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of Common Shares during the Undersigned’s Lock-Up Period, the undersigned shall include a statement in such schedule or report to the effect that the purpose of such transfer was to cover tax withholding obligations of the undersigned in connection with such vesting or exercise and, provided further, that the Plan Shares shall be subject to the terms of this lock-up agreement; (g) the transfer of Lock-Up Securities pursuant to agreements described in the Pricing Prospectus under which the Company has the option to repurchase such securities or a right of first refusal with respect to the transfer of such securities, provided that if the undersigned is required to file a report under Section 13 or Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of Common Shares during the Lock-Up Period, the undersigned shall include a statement in such schedule or report describing the purpose of the transaction; (h) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Lock-Up Securities, provided that (i) such plan does not provide for the transfer of Lock-Up Securities during the Lock-Up Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding the establishment of such plan, such public announcement or filing shall include a statement to the effect that no transfer of Lock-Up Securities may be made under such plan during the Lock-Up Period; (i) the transfer of Lock-Up Securities that occurs by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement, provided that the transferee agrees to sign and deliver a lock-up agreement substantially in the form of this lock-up agreement for the balance of the Lock-Up Period, and provided further, that any filing under Section 13 or Section 16(a) of the Exchange Act that is required to be made during the Lock-Up Period as a result of such sale or disposition, the undersigned transfer shall include a statement that such transfer has occurred by operation of law; and (j) the transfer of Lock-Up Securities pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of the Common Shares involving a change of control (as defined below) of the Company after the closing of the Public Offering and approved by the Company’s board of directors; provided that in the event that the tender offer, merger, consolidation or other such report transaction is not completed, the Lock-Up Securities owned by the undersigned shall remain subject to the effect that restrictions contained in this lock-up agreement. For purposes of clause (j) above, “change of control” shall mean the purpose consummation of such sale any bona fide third party tender offer, merger, amalgamation, consolidation or other disposition was to cover tax obligations similar transaction the result of which is that any “person” (as defined in Section 13(d)(3) of the Exchange Act), or group of persons, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of a majority of total voting power of the voting stock of the Company. The undersigned in connection also agrees and consents to the entry of stop transfer instructions with the vesting Company’s transfer agent and registrar against the transfer of the undersigned’s restricted Lock-Up Securities except in compliance with this lock-up agreement. The undersigned agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this lock-up agreement during the period from the date hereof to and including the 34th day following the expiration of the Lock-Up Period, the undersigned will give notice thereof to the Company and will not consummate any such transaction or take any such action unless it has received written confirmation from the Company that the Lock-Up Period has expired. If the undersigned is an officer or director of the Company, (i) the undersigned agrees that the foregoing restrictions shall be equally applicable to any issuer-directed or “friends and family” Securities that the undersigned may purchase in the Public Offering; (ii) the Representative agrees that, at least three (3) business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of Lock-Up Securities, the Representative will notify the Company of the impending release or waiver; and (iii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two (2) business days before the effective date of the release or waiver. Any release or waiver granted by the Representative hereunder to any such officer or director shall only be effective two (2) business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer of Lock-Up Securities not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this lock-up agreement to the extent and for the duration that such terms remain in effect at the time of such transfer. The undersigned understands that the Company and the Representative are relying upon this lock-up agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this lock-up agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by October 30, 2021, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Shares to be sold thereunder, then this lock-up agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Representative. Very truly yours, (Name - Please Print) (Signature) (Name of Signatory, in the case of entities - Please Print) (Title of Signatory, in the case of entities - Please Print) Address: EXHIBIT C Form of Press Release Harbor Custom Development, Inc. [Date] Harbor Custom Development, Inc. (the “Company”) announced today that ThinkEquity LLC, acting as representative for the underwriters in the Company’s recent public offering of _______ shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxxthe Company’s Series A Cumulative Convertible Preferred Stock and _______ common stock purchase warrants, who serves as trustee is [waiving] [releasing] a lock-up restriction with respect to _________ shares of several GRATs established the Company’s common stock held by his mother[certain officers or directors] [an officer or director] of the Company. The [waiver] [release] will take effect on _________, Xxx X. Xxxxxx20___, which hold Company common and the shares and make annuity payments may be sold on or after such date. This press release is not an offer or sale of the securities in the form United States or in any other jurisdiction where such offer or sale is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the Securities Act of Company common shares to her or to other trusts set up for her benefit1933, which would be covered by clause (ii)as amended.
Appears in 1 contract
Samples: Underwriting Agreement (Harbor Custom Development, Inc.)
Research Analyst Independence. The Company and the Selling Stockholder Stockholders acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder Stockholders hereby waive and release, to the fullest extent permitted by law, any claims that they may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder Stockholders by any Underwriter’s investment banking division. The Company and the Selling Stockholder Stockholders acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between the Company, the Selling Stockholder Stockholders and the several Underwriters. Very truly yours, HEARTLAND EXPRESSUSA TRUCK, INC. /s/ Xxxx Mxxxxxx X. Xxxxxxx Name: Xxxx Mxxxxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDERSTOCKHOLDERS: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 BXXXX STREET CAPITAL, L.P. By: BXXXX STREET CAPITAL GP, LLC General Partner /s/ Vxxxx Xxxxxxxx X. Xxxxxx Name: Vxxxx Xxxxxxxx X. Xxxxxx Title: Trustee Managing Member SH CAPITAL PARTNERS, L.P. By: Stone House Capital Management, LLC Its: General Partner /s/ Mxxx Xxxxx Name: Mxxx Xxxxx Title: Managing Member CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I II hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX SXXXXXXX INC. By: /s/ Xxxxxxx Mxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESCXXXX AND COMPANY, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx Kxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Selling Stockholders Name Number ofFirm of Firm Shares Xxxxxxto be Sold Maximum Number of Additional Shares Subject to Option Bxxxx Street Capital, Xxxxxxxx & L.P. 1,217,392 182,608 SH Capital Partners, L.P. 521,739 78,261 Total: 1,739,131 260,869 SCHEDULE II Name Number of Firm Shares Sxxxxxxx Inc. 1,391,305 Cxxxx and Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 347,826 Total: 3,250,000 Schedule II 1,739,131 SCHEDULE III Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx NetRoadshow presentation dated May 2015 previously provided to counsel for the Company and the Underwriters Pricing Information Number of Firm Shares: 3,250,000 1,739,131 Number of Additional Shares: 487,500 260,869 Public Offering Price: $23.75 20.00 per share of Common Stock Exhibit EXHIBIT A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressUSA Truck, Inc. Form of Lock-Up Agreement XXXXXX_________________, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX 2015 SXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T SecuritiesCXXXX AND COMPANY, LLC As Representatives of the Several Underwriters xc/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxxo Stephens Inc. 100 Xxxxxx Xxxxxx Xxxxxx Xxxx, Xxxxxxxx 00000 Re: Heartland ExpressUSA Truck, Inc. - – Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland ExpressUSA Truck, Inc., a Nevada Delaware corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Sxxxxxxx Inc. and Cxxxx and Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I II to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 selling stockholders named in Schedule I thereto (the “Selling StockholderStockholders”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, IncorporatedSxxxxxxx Inc., the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, IncorporatedSxxxxxxx Inc., the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] or (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may (i) sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only Stock and (ii) forfeit or surrender to the Company the undersigned’s restricted shares of Common Stock due to failure to achieve vesting requirements associated with such restricted shares, provided that if the undersigned is required to make a filing under the Exchange Act reporting a reduction of beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such forfeiture or surrender, the undersigned shall include for Xxxxxxx X. Xxxxxxa statement in such report to the effect that the purpose of such forfeiture or surrender was due to failure to meet vesting requirements associated with the undersigned’s restricted shares. Nothing contained herein shall apply to or otherwise restrict any transfer or deemed transfer of shares of Common Stock or options to purchase Common Stock to the Company in connection with the exercise of options to purchase Common Stock only to the extent that such options would expire during the Lock-Up Period, who serves including, but not limited to, the payment of the exercise price of such options to acquire Common Stock, or to otherwise satisfy tax withholding obligations in connection with the exercise of such stock options. Furthermore, the undersigned may, during the Lock-Up Period, sell shares of Common Stock purchased by the undersigned on the open market following the closing of the Public Offering if and only if (i) such sales are not required to be reported in any public report or filing with the SEC and (ii) the undersigned does not otherwise voluntarily effect any public filing or report with the SEC regarding such sales. If (x) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or other press release of material information or a material event relating to the Company occurs or (y) prior to the expiration of the Lock-Up Period, the Company announces that it will release its earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the Lock-Up Period shall be extended by, and the restrictions imposed by this Lock-Up Agreement shall continue to apply until the expiration of, the 18-day period beginning on the issuance of the earnings or other press release or the occurrence of the material event; provided, however, that such extension of the lock-up period shall not apply if (1) the Underwriters meet the requirements set forth in paragraph (a)(1)(iii) of Rule 139 under the Securities Act, (2) at the expiration of the Lock-Up Period, the Common Stock are “actively traded securities” (as trustee defined in Regulation M under the Exchange Act) and (3) the Company meets the applicable requirements of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments paragraph (a)(1) of Rule 139 under the Securities Act in the form manner contemplated by NASD Rule 2711(f)(4) of the FINRA Manual. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the Undersigned’s Shares in violation of this Lock-Up Agreement. The undersigned understands that the Company common shares and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns. Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions, and the Public Offering will only be made pursuant to her the Underwriting Agreement. This Lock-Up Agreement shall automatically terminate and be of no further force and effect if (i) the Representatives advise the Company and the Selling Stockholders, or to other trusts set up for her benefitthe Company or the Selling Stockholders advise the Representatives, which would be covered by clause in writing, that they or it will not proceed with the Public Offering, (ii).) the Underwriting Agreement terminates before the sale of any Shares to the Underwriters, or (iii) the Underwriting Agreement has not been executed by the Company, the Selling Stockholders and the Representatives by June 15, 2015. Very truly yours, Signature: Print name: Title:
Appears in 1 contract
Research Analyst Independence. The Company and acknowledges that the Selling Stockholder acknowledge that (a) the Underwriters’ Agent’s research analysts and research departments are required to be independent from their respective its investment banking divisions division and are subject to certain regulations and internal policies policies, and (b) that the Underwriters’ Agent’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisionsdivision. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters Agent with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ its independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or by the Selling Stockholder by any Underwriter’s Agent investment banking division. The Company and acknowledges that the Selling Stockholder acknowledge that each of the Underwriters Agent is a full service securities firm and as such, such from time to time, subject to applicable securities laws, rules and regulations, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies Company; provided, however, that are nothing in this Section 21 shall relieve the subject Agent of the transactions contemplated by this Agreementany responsibility or liability it may otherwise bear in connection with activities in violation of applicable securities laws, rules or regulations. Please confirm that If the foregoing correctly sets forth is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement between the Company, the Selling Stockholder and the several Underwritersin accordance with its terms. Very truly yours, HEARTLAND EXPRESSDISCOVERY LABORATORIES, INC. By: /s/ Xxxx X. Xxxxxxx Xxxxxx Name: Xxxx X. Xxxxxxx Xxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED The foregoing Sales Agency Agreement is hereby confirmed and accepted by the Agent in New York, New York as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I heretowritten. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T LAZARD CAPITAL MARKETS, a division of BB&T SECURITIES, MARKETS LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxxx, Xx. Name: Xxxxxxx X. Xxxxx Xxxxxxxx, Xx. Title: Managing Director US 3297123v.16 SCHEDULE I Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed included in the Time of Sale Information (as defined in Prospectus None SCHEDULE II Due Diligence Protocol Set forth below are guidelines for use by the Underwriting Agreement), provided that each such transfer shall occur on or about Company and the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned Agent in connection with the vesting Agent’s continuous due diligence efforts in connection with the sale and distribution of the undersigned’s restricted shares Shares pursuant to the Agreement. For the avoidance of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxxdoubt, who serves as trustee the Agent and the Company expect that no sales under the Agreement will be requested or made at any time the Company is, or could be deemed to be, in possession of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in material non-public information with respect to the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii)Company.
Appears in 1 contract
Samples: Sales Agency Agreement (Discovery Laboratories Inc /De/)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s such Underwriters’ investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this AgreementAgreement and the General Disclosure Package. Please confirm that If the foregoing correctly sets forth is in accordance with your understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding agreement between among the Company, the Selling Stockholder Securityholder and the several UnderwritersUnderwriters in accordance with its terms. Very truly yours, HEARTLAND EXPRESSLaureate Education, INC. Inc. By: /s/ Xxxx Vxxxxxxx Xxxxxx Name: Vxxxxxxx Xxxxxx Title: Senior Vice President, Secretary and Chief Legal Officer Wengen Alberta, Limited Partnership By: Wengen Investments Limited, its General Partner By: /s/ Sxxxxx X. Xxxxxxx Name: Xxxx Sxxxxx X. Xxxxxxx Title: Executive Vice President of Finance Director The foregoing Underwriting Agreement is hereby confirmed and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED accepted as of the date first above mentioned, written. Acting on behalf of itself and as the Representatives and Representative of the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, Mxxxxx Sxxxxxx & Co. LLC By: /s/ Jxxxx Xxxxx Xxxxxx Authorized Representative Name: Jxxxx Xxxxx Xxxxxx - Title: Executive Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information SCHEDULE A Underwriter Number of Firm Shares: 3,250,000 Securities Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX Optional Securities Mxxxxx Sxxxxxx & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, Co. LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).15,000,000 2,250,000 Total 15,000,000 2,250,000 SCHEDULE B
Appears in 1 contract
Research Analyst Independence. The Each of the Company and the Selling Stockholder acknowledge Shareholders acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisions. The Each of the Company and the Selling Stockholder Shareholders hereby waive waives and releasereleases, to the fullest extent permitted by law, any claims that they the Company and the Selling Shareholders may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the Selling Stockholder Shareholders by any Underwriter’s such Underwriters’ investment banking divisiondivisions. The Each of the Company and the Selling Stockholder acknowledge Shareholders acknowledges that each of the Underwriters is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or for the account of its customers and hold long or short positions in debt or equity securities of the companies that are Company. If the subject foregoing is in accordance with your understanding, please sign and return to us six counterparts hereof, and upon the acceptance hereof by you this letter and such acceptance hereof shall constitute a binding agreement among each of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between the CompanyUnderwriters, the Selling Stockholder Company and the several UnderwritersSelling Shareholders. Very truly yours, HEARTLAND EXPRESSTHE ANDERSONS, INC. By: /s/ Xxxx X. Xxxxxxx Naran Burchinow Name: Xxxx X. Xxxxxxx Naran Burchinow Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDERSHAREHOLDERS: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Mxxxxxx X. Xxxxxxxx Rxxxxxx X. Xxxxxxxx Rxxxxxx X. Xxxxxxxx LLC Cxxxx X. Xxxxx Pxxx X. Xxxxx Dxxx X. Xxxxxx Rxxxxxx X. Xxxxxx Gxxx X. Xxxxx By: /s/ Naran Burchinow Name: Xxxxxxxx X. Xxxxxx Naran Burchinow Title: Trustee CONFIRMED Attorney-in-Fact Accepted as of the date first above mentionedabove: BB&T CAPITAL MARKETS, on a Division of Sxxxx & Sxxxxxxxxxxx, Inc. By: /s/ Jxxxx X. Xxxxx, Xx. Name: Jxxxx X. Xxxxx, Xx. Title: Senior Vice President PXXXX XXXXXXX & CO. By: /s/ Cxxxxxxx X. Cxxxxxxxx Name: Cxxxxxxx X. Cxxxxxxxx Title: Principal On behalf of the Representatives themselves and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Optional Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Purchased if Maximum Firm Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Option
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by applicable law, any claims that they the Company may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s such Underwriters’ investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that If the foregoing correctly sets forth is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Company, the Selling Stockholder Underwriters and the several UnderwritersCompany in accordance with its terms. Very truly yours, HEARTLAND EXPRESSBGC PARTNERS, INC. By: /s/ Xxxx Xxxxxx X. Xxxxxxx Name: Xxxx Xxxxxx X. Xxxxxxx Title: Executive Vice President of Finance Chairman and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED AND ACCEPTED, as of the date first above mentionedwritten: XXXXX FARGO SECURITIES, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED LLC By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxxx Xxxx Xxxxxx Authorized Signatory For themselves and as Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I the Underwriters named in Exhibit A hereto. EXHIBIT A Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 of Underwriter Principal Amount of Initial Securities Xxxxx Fargo Securities, LLC 650,000 BB&T $ 79,500,000 Cantor Xxxxxxxxxx & Co. $ 5,000,000 Xxxxxxx Xxxxx & Associates, Inc. $ 5,000,000 RBC Capital Markets, a division of BB&T LLC $ 5,000,000 CastleOak Securities, L.P. $ 1,000,000 Xxxxx, Xxxxxxxx & Xxxxx, Inc. $ 1,000,000 Sandler X’Xxxxx & Partners, L.P. $ 1,000,000 X. X. Xxxxxxxx & Co. $ 500,000 Xxxxxx Xxxxxxxxxx Xxxxx LLC 650,000 Total$ 500,000 Xxxxxx X. Xxxxx & Co. Incorporated $ 500,000 Wedbush Securities Inc. $ 500,000 U.S. Bancorp Investments, Inc. $ 500,000 Total $ 100,000,000 EXHIBIT B SIGNIFICANT SUBSIDIARIES OF THE COMPANY Name Jurisdiction of Organization Type of Entity Names of General Partners/Managing Members* Xxxxx BGC SAS France Corporation BGC Brokers L.P. England Limited Partnership BGC Brokers GP Limited BGC Capital Markets, L.P. Delaware Limited Partnership BGCCMLP Holdings, LLC BGC European Holdings, L.P. England Limited Partnership BGC European GP Limited BGC Financial, L.P. Delaware Limited Partnership BGCF Holdings, LLC BGC Global Holdings, L.P. Cayman Islands Limited Partnership BGC Global Holdings GP Limited BGC Holdings, L.P. Delaware Limited Partnership BGC GP, LLC BGC International Holdings, L.P. Delaware Limited Partnership BGCIHLP, LLC BGC Market Data, L.P. Delaware Limited Partnership BGCantor Market Data Holdings, LLC BGC Partners, L.P. Delaware Limited Partnership BGC Holdings, LLC BGC Partners Singapore LTD Singapore Public Company Limited by Shares eSpeed International Limited England Private Limited Company eSpeed Technology Services, L.P. Delaware Limited Partnership eSpeed Technology Services Holdings, LLC * Applicable only if the subsidiary in question is a limited or general partnership or limited liability company. EXHIBIT C FORM OF PRICING TERM SHEET Filed Pursuant to Rule 433 Registration No. 333-180331 June 21, 2012 BGC PARTNERS, INC. Pricing Term Sheet $100,000,000 8.125% Senior Notes due 2042 Issuer: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx BGC Partners, Inc. Security Type: Senior Unsecured Notes Pricing Information Number of Firm SharesDate: 3,250,000 Number of Additional SharesJune 21, 2012 Settlement Date: 487,500 June 26, 2012 (T+3) Maturity Date: June 15, 2042 Interest Payment Dates: March 15, June 15, September 15 and December 15, beginning September 15, 2012 Principal Amount: $100,000,000 Over-allotment Option: $15,000,000 Public Offering Price: $23.75 25.00 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressNote, Inc. Lock-Up Agreement XXXXXXplus accrued interest, XXXXXXXX & COMPANYif any, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securitiesfrom June 26, LLC BB&T Capital Markets2012 Optional Redemption: The Notes may be redeemed, for cash, in whole or in part, on or after June 26, 2017, at our option, at any time and from time to time, until maturity at a division of BB&T Securities, LLC As Representatives redemption price equal to 100% of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an principal amount of the Undersigned’s Shares that raises gross proceeds thatnotes to be redeemed, as nearly as reasonably practicableplus accrued but unpaid interest on the principal amount being redeemed to, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or dispositionbut not including, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii)redemption date.
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESSADMA BIOLOGICS, INC. /s/ Xxxx Axxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice Xxxxxxxx President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Ex Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm of Firm Shares Xxxxxxto the Public Rxxxxxx Jxxxx & Associates, Xxxxxxxx Inc. 5,523,012 Oxxxxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Co. Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T 2,092,050 Chardan Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule 753,138 Total 8,368,200 SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Prospectus None. SCHEDULE III Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Terms
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ Xxxxxx Xxxxxx’x research analysts and research departments department are required to be independent from their respective the investment banking divisions division and are subject to certain regulations and internal policies policies, and (b) the Underwriters’ that Xxxxxx Xxxxxx’x research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective the investment banking divisionsdivision. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they the Company may have against the Underwriters Xxxxxx Xxxxxx with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ its independent research analysts and research departments may be different from or inconsistent with the views or advice advise communicated to the Company or the Selling Stockholder by any Underwriter’s Xxxxxx Xxxxxx’x investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters Xxxxxx Xxxxxx is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that [Signature Page Follows.] If the foregoing correctly sets forth is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the CompanyXxxxxx Xxxxxx, the Selling Stockholder Company and the several UnderwritersPartnership in accordance with its terms. Very truly yours, HEARTLAND EXPRESSPARKWAY PROPERTIES, INC. By /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx Xxxxxx X. Xxxxxx Title: Trustee President and CEO PARKWAY PROPERTIES LP By: Parkway Properties General Partners, Inc., its sole general partner By /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx Title: President and CEO CONFIRMED AND ACCEPTED, as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX written: XXXXXX XXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: By /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Signatory EXHIBIT C COMPENSATION Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx Xxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives (“Xxxxxx Xxxxxx”) shall be paid compensation equal to 2% of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director gross proceeds from the sales of Heartland Express, Inc., a Nevada corporation (Securities pursuant to the “Company”), or one terms of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting this Agreement (the “Underwriting AgreementBase Commission”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).
Appears in 1 contract
Samples: Equity Distribution Agreement (Parkway Properties Inc)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Company and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, PLX PHARMA INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxxx Xxxxxxx Title: Executive Vice Xxxxxxxx President of Finance and Chief Financial Executive Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives Representative and the other several Underwriters named in Schedule I hereto. XXXXXXXXXXXXX XXXXX & ASSOCIATES, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Firm Shares XxxxxxXxxxxxx Xxxxx & Associates, Xxxxxxxx Inc. 4,725,000 Xxxxxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Co. Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 3,150,000 Total: 3,250,000 Schedule 7,875,000 ** It is understood that the $375,000 financial advisory fee due to JMP Securities to be described in the Underwriting section of Prospectus shall be deducted from the fees due to the Underwriters, but shall not reduce the fee payable to Xxxxxxxxxxx & Co. based on the above allocations. SCHEDULE II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Price per share to the public: $8.00 Firm Shares: 3,250,000 Number of 7,875,000 Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. 1,181,250 SCHEDULE III Persons Subject to Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).up
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by applicable law, any claims that they the Company may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s such Underwriters’ investment banking divisiondivisions. The Company and the Selling Stockholder acknowledge acknowledges that each of the Underwriters is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that If the foregoing correctly sets forth is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Company, the Selling Stockholder Underwriters and the several UnderwritersCompany in accordance with its terms. Very truly yours, HEARTLAND EXPRESSFMC TECHNOLOGIES, INC. By: /s/ Xxxx X. Xxxxxxx Xxxxx Name: Xxxx X. Xxxxxxx Xxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee Treasurer CONFIRMED AND ACCEPTED, as of the date first above mentionedwritten: XXXXX FARGO SECURITIES, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED LLC X.X. XXXXXX SECURITIES LLC By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxxx Xxxxxx Authorized Representative Xxxxx Name: Xxxxxxx Xxxxxx - Title: Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, By: X.X. XXXXXX SECURITIES LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Vice President For themselves and as Representatives of the Underwriters named in Exhibit A hereto. EXHIBIT A Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 of Underwriter Principal Amount of 2017 Notes Principal Amount of 2022 Notes Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets$ 120,000,000 $ 200,000,000 X.X. Xxxxxx Securities LLC 120,000,000 200,000,000 DNB Markets Inc. 15,000,000 25,000,000 Mitsubishi UFJ Securities (USA), a division of BB&T SecuritiesInc. 15,000,000 25,000,000 RBS Securities Inc. 15,000,000 25,000,000 U.S. Bancorp Investments, LLC 650,000 TotalInc. 15,000,000 25,000,000 Total $ 300,000,000 $ 500,000,000 EXHIBIT B FORM OF PRICING TERM SHEET Filed Pursuant to Rule 433 Registration No. 333-183953 September 18, 2012 FMC TECHNOLOGIES, INC. Pricing Term Sheet $300,000,000 2.00% Senior Notes due 2017 $500,000,000 3.45% Senior Notes due 2022 Issuer: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx FMC Technologies, Inc. Ratings: (Xxxxx’x / S&P)*: Baa2 / BBB Ratings Outlooks: (Xxxxx’x / S&P)*: Stable / Stable Security Type: Senior Unsecured Notes Pricing Information Number of Firm SharesDate: 3,250,000 Number of Additional SharesSeptember 18, 2012 Settlement Date (T+3): September 21, 2012 2.00% Senior Notes due 2017 3.45% Senior Notes due 2022 Maturity Date: 487,500 October 1, 2017 October 1, 2022 Interest Payment Dates: April 1 and October 1, beginning April 1, 2013 April 1 and October 1, beginning April 1, 2013 Principal Amount: $300,000,000 $500,000,000 Benchmark: 0.625% due August 31, 2017 1.625% due August 15, 2022 Benchmark Price / Yield: 99-20+ / 0.699% 98-10+ / 1.810% Spread to Benchmark: + 135 bps +165 bps Yield to Maturity: 2.049% 3.460% Coupon: 2.00% 3.45% Public Offering Price: 99.767% 99.915% Optional Redemption: Make-Whole Call: At any time, at the greater of (i) 100% or (ii) a discount rate of Treasury plus 20 basis points At any time prior to July 1, 2022, at the greater of (i) 100% or (ii) a discount rate of Treasury plus 25 basis points Par Call: None At any time on or after July 1, 2022 CUSIP / ISIN: 30249U AA9 / US30249UAA97 30249U AB7 / US30249UAB70 Net Proceeds (Before Expenses): $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock793,826,000 Joint Book-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Running Managers: X.X. Xxxxxx Securities LLC Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 ReCo-Managers: Heartland ExpressDNB Markets Inc. Mitsubishi UFJ Securities (USA), Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland ExpressRBS Securities Inc. U.S. Bancorp Investments, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).
Appears in 1 contract
Research Analyst Independence. The Company and the Selling Stockholder Partnership Parties acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the CompanyPartnerships, the value of the Common Stock Units and/or the offering that differ from the views of their respective investment banking divisions. The Company Partnership Parties hereby waives and the Selling Stockholder hereby waive and releasereleases, to the fullest extent permitted by law, any claims that they it may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder Partnership Parties by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge Partnership Parties acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [SIGNATURE PAGES FOLLOWS] Please confirm that the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Partnership Parties and the several Underwriters. Very truly yours, HEARTLAND EXPRESSCYPRESS ENERGY PARTNERS, INC. /s/ Xxxx X. Xxxxxxx L.P. By: Cypress Energy Partners GP, LLC, its General Partner By: Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDERCYPRESS ENERGY PARTNERS GP, LLC By: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CYPRESS ENERGY HOLDINGS, LLC By: Name: Title: CYPRESS ENERGY HOLDINGS II, LLC By: Name: Title: Signature Pages to Underwriting Agreement CYPRESS ENERGY PARTNERS – TIR, LLC By: Name: Title: CYPRESS ENERGY PARTNERS, LLC By: Name: Title: Signature Pages to Underwriting Agreement CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXRXXXXXX JXXXX & ASSOCIATES, INC. By: Name: Title: RXXXXX X. XXXXX & CO. INCORPORATED By: Name: Title: SXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INCName: Title: BMO CAPITAL MARKETS CORP. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIESName: Title: Signature Pages to Underwriting Agreement SCHEDULE I - UNDERWRITERS Name Firm Units Rxxxxxx Jxxxx & Associates, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx Inc. [ ] Rxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx& Co. Incorporated [ ] Sxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 [ ] BMO Capital Markets Corp. [ ] Jxxxxx Mxxxxxxxxx Xxxxx Fargo LLC [ ] Wxxxxxxxxx Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Inc. [ ] Total: 3,250,000 [ ] Schedule I to Underwriting Agreement SCHEDULE II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information - TIME OF SALE INFORMATION Number of Firm SharesUnits: 3,250,000 Number of Additional Shares: 487,500 [ ] Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER[ ] US 3304868v.9 Heartland Express, Inc. LockSchedule II to Underwriting Agreement SCHEDULE III – SIGNATORIES TO LOCK-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo SecuritiesUP LETTERS Cypress Energy Holdings, LLC BB&T Capital Markets, a division of BB&T SecuritiesCypress Energy Holdings II, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. Cypress Energy Partners - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo SecuritiesTIR, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Pxxxx X. Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).III
Appears in 1 contract
Samples: Underwriting Agreement (Cypress Energy Partners, L.P.)
Research Analyst Independence. The Company and the Selling Stockholder acknowledge acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies policies, and (b) the that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock Company and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder hereby waive and release, to the fullest extent permitted by law, any claims that they may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder Stockholders acknowledge that each of the Underwriters is a full service securities firm and as such, such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are may be the subject of the transactions contemplated by this Agreement. Please confirm that If the foregoing correctly sets forth the agreement between among the Company, the Selling Stockholder Stockholders and the several Underwriters, please indicate your acceptance in the space provided for that purpose below. Very truly yours, HEARTLAND EXPRESSEagle Test Systems, INC. /s/ Xxxx X. Xxxxxxx Inc. By Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Foxman Family LLC By Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as Accepted: Banc of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX America Securities LLC Lxxxxx Brothers Inc. Pxxxx Xxxxxxx & COMPANY, INCORPORATED By: /s/ Xxxxx Co. Canaccord Axxxx Inc. A.X. Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressSons, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As For themselves and as Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I 1 hereto By Lxxxxx Brothers Inc. By: Authorized Representative And Banc of America Securities LLC By: Authorized Representative SCHEDULE 1 Number of Shares of Firm Underwriters Stock to such agreement be Purchased Lxxxxx Brothers Inc. Banc of America Securities LLC Pxxxx Xxxxxxx & Co. Canaccord Axxxx, Inc. A.X. Xxxxxxx & Sons, Inc. Total 6,500,000 SCHEDULE 2 Number of Shares of Firm Selling Stockholders Stock to be Sold Foxman Family LLC 370,000 Total 370,000 SCHEDULE 3 ISSUER FREE WRITING PROSPECTUSES SCHEDULE 4 Price per share: $___ Offering Size: 6,500,000 shares or 7,475,000 if the Underwriters exercise their over-allotment option in full Closing Date: March ___, 2006 Exhibit A LOCK-UP LETTER AGREEMENT Ladies and Gentlemen: The undersigned is an owner of record or beneficially of certain shares of Common Stock of the Company (collectively, “Common Stock”) or securities convertible into or exchangeable or exercisable for Common Stock. The Company proposes to carry out a public offering of Common Stock (the “UnderwritersOffering”)) for which you will act as the representatives of the underwriters. The undersigned recognizes that the Offering will be of benefit to the undersigned and will benefit the Company by, among other things, raising additional capital for its operations. The undersigned acknowledges that you and the other underwriters are relying on the representations and agreements of the undersigned contained in this letter in carrying out the Offering and in entering into underwriting arrangements with the Company and with respect to the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledgedforegoing, the undersigned hereby agrees thatthat the undersigned will not, during the period beginning on the date hereof (and ending on the date that is 90 days from the date will cause any spouse or immediate family member of the final prospectus relating to the Public Offering (the “Lock-Up Period”), spouse or the undersigned agrees thatliving in the undersigned’s household not to), without the prior written consent of XxxxxxBanc of America Securities LLC and Lxxxxx Brothers Inc. (which consent may be withheld in their sole discretion), Xxxxxxxx & Company, Incorporated, the undersigned will not offerdirectly or indirectly, sell, offer, contract to sell, pledge, lend, or grant any option to purchase, make sell (including without limitation any short sale sale), pledge, swap, hedge, transfer, establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended, or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any acquire shares of Common Stock, or any securities convertible into, exchangeable or exercisable for or that represent the right to receive convertible into shares of Common StockStock currently or hereafter owned either of record or beneficially (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, whether now owned or hereinafter acquired, owned directly as amended) by the undersigned (including holding as a custodian) or with respect such spouse or family member), or publicly announce an intention to which the undersigned has beneficial ownership within the rules and regulations do any of the Securities foregoing, for a period commencing on the date hereof and Exchange Commission (collectively continuing through the “Undersigned's Shares”)close of trading on the date 180 days after the date of the Prospectus. The foregoing restriction is expressly agreed sentence shall not apply to preclude the transfer of any or all of the shares of Common Stock owned by the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift to the underwriters in connection with the Offering, (ii) either during his lifetime or gifts or on death, by willgift, other testamentary document will or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) or to an entity in a trust the beneficiaries of which more than fifty percent of the voting interests are owned by exclusively the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to and/or a member or members of the undersigned’s his immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition in the case of transfers pursuant to clauses (i), clause (ii) or (iii) above it shall be a condition to such transfer that the transferee executes and delivers to Banc of America Securities LLC and Lxxxxx Brothers Inc. an agreement stating that the transferee is receiving and holding the Common Stock subject to the provisions of this letter agreement, and there shall be no further transfer of such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 Common Stock except in accordance with Section 16 this letter. Notwithstanding anything herein to the contrary, the restrictions set forth in this agreement shall not apply to the establishment of a trading plan that complies with Rule 10b-51 under the Securities Exchange Act of 1934, as amended (amended, on a date that is more than 90 days after the “Exchange Act”)date of the Prospectus; provided however, and no other public filing or report regarding such transfer that the restrictions shall be required or shall be voluntarily made apply in full force to sales pursuant to the trading plan during the Locklock-Up Periodup period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage If (i) the Company issues an earnings release or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecatedmaterial news, or granted as collateral or security for any obligation. [In addition, notwithstanding a material event relating to the foregoingCompany occurs, during the Locklast 17 days of the lock-Up Periodup period, or (ii) prior to the expiration of the lock-up period, the undersigned may sell or otherwise dispose Company announces that it will release earnings results during the 16-day period beginning on the last day of the Undersignedlock-up period, the restrictions imposed by this agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event; provided however, that this sentence shall not apply if any research published or distributed by any underwriter in the Offering on the Company would be compliant under Rule 139 of the Securities Act of 1933, as amended, and the Company’s Shares securities are actively traded as defined in Rule 101(c)(1) of Regulation M of the Exchange Act of 1934, as amended. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock held by the purpose undersigned except in compliance with the foregoing restrictions. [Notwithstanding anything herein to the contrary, the restrictions set forth in this agreement shall not apply to shares of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred Common Stock purchased by the undersigned as a result of participant in the vestingdirected share program, during provided that the Lock-Up Period, of restricted undersigned purchased less than 10,000 shares of Common Stock outstanding in such program. In the event the undersigned purchases 10,000 or more shares of Common Stock as a participant in the directed share program, all of the shares purchased by the undersigned pursuant to such program shall be subject to the restrictions set forth in this agreement for a period commencing on the date hereof pursuant and continuing through the close of trading on the date 25 days after the date of the Prospectus.] [This paragraph to stock plans disclosed in be inserted for employees of the Time Company who are not executive officers] This agreement is irrevocable and will be binding on the undersigned and the respective successors, heirs, personal representatives, and assigns of Sale Information (as defined in the undersigned. It is understood, however, if the Company notifies you that it does not intend to proceed with the Offering, or if the Underwriting Agreement), provided that each such transfer shall occur on or about Agreement to be entered into among the time of such vesting Company and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned underwriters in connection with the vesting Offering is terminated or does not become effective prior to June 1, 2006, then this letter agreement shall terminate. Printed Name of the undersigned’s restricted shares Holder By: Signature Printed Name of Common Stock.]2 1NTD: Only include for Xxxxxxx X. XxxxxxPerson Signing (and indicate capacity of person signing if signing as custodian, who serves as trustee trustee, or on behalf of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (iian entity).
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