Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. (i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”). (ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. (iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent. (iv) The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares shall be up to 1.25% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (v) The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales. (vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi). (vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement. (i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. (i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing. (ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. (d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement. (e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day. (f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information. (g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application. (h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 11 contracts
Samples: Distribution Agency Agreement (Annaly Capital Management Inc), Distribution Agency Agreement (Annaly Capital Management Inc), Distribution Agency Agreement (Annaly Capital Management Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares shall be up to 1.25% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first second business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 10 contracts
Samples: Distribution Agency Agreement (Annaly Capital Management Inc), Distribution Agency Agreement (Annaly Capital Management Inc), Distribution Agency Agreement (Annaly Capital Management Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares shall be up to 1.25% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first second business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company and the Manager shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Manager herein, to the performance by the Company and the Manager of its their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company and the Manager shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company or the Manager from any of its their respective obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 10 contracts
Samples: Distribution Agency Agreement (Annaly Capital Management Inc), Distribution Agency Agreement (Annaly Capital Management Inc), Distribution Agency Agreement (Annaly Capital Management Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell Securities from time to time through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares Securities on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by Each time that the Company and the Sales Agent wishes to sell Securities on any day that (A) is a trading day for the NYSE New York Stock Exchange (a “Trading Day”) (other than a day Trading Day on which the NYSE New York Stock Exchange is scheduled to close prior to its regular weekday closing time) pursuant to this Agreement (each, a “Placement”), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to instruct the Sales Agent in writing of the parameters in accordance with which it desires Securities to be sold, which shall at a minimum include the number of Securities to be offered, the time period during which sales are requested to be made, the minimum price below which sales may not be made and any limitation on the number of Securities that may be sold in any one day (a “Placement Notice”). The Sales Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same business day (as defined below) on which such Placement Notice is delivered to the Sales Agent, issue to the Company a notice by email addressed to all of the Authorized Representatives (as defined below) confirming all of the parameters of the Placement. The Placement Notice shall be effective upon receipt by any of the Authorized Representatives of the email notice from the Sales Agent, unless and until (i) the entire amount of the Securities covered by the Placement Notice have been sold, (ii) in accordance with Section 2(a)(ii) hereof, the Company or the Sales Agent suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) this Agreement has been terminated under the provisions of Section 9. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Securities designated in the Placement Notice; provided, however, that the Sales Agent shall have no obligation to offer or sell any SharesSecurities, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, obligation in the event an offer or sale of the Shares Securities on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act 1934 Act, or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange 1934 Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is other than (A) by means of ordinary brokers’ transactions between members of the NYSE New York Stock Exchange that qualify for delivery of a Prospectus to the NYSE New York Stock Exchange in accordance with Rule 153 under the 1933 Act or (such B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the transactions described in (A) and (B) are hereinafter referred to as “At-the-At the Market Offerings”). In the event of a conflict between the terms of this Agreement and the terms of any Placement Notice, the terms of such Placement Notice will control.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agentmail from such party), suspend the offering of the Shares; Securities pursuant to this Agreement or suspend or terminate a previously issued Placement Notice; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares Securities sold hereunder prior to the giving of such notice. Each of the parties agrees that no such notice shall be effective against the other unless it is made to one of its authorized representatives as set forth on Schedule B hereto (the “Authorized Representatives”), as such Schedule may be amended from time to time.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares Securities on behalf of the Company, pursuant to this Section 4(a2(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares Securities on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The gross sales price of any Securities sold pursuant to this Agreement by the Sales Agent, as an agent of the Company, shall be the market price prevailing at the time of sale for Securities sold by the Sales Agent on the New York Stock Exchange or otherwise, at prices related to prevailing market prices or, subject to specific instructions of the Company, at negotiated prices. The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares Securities shall be at a mutually agreed rate up to 1.252.0% of the gross sales price of the Shares Securities sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and 2(a). The foregoing rate of compensation shall not apply when the Sales Agent from acts as principal, in which case the Company may sell Securities to the Sales Agent as principal at a price agreed upon at the relevant applicable time pursuant to timea separate agreement (each, a “Terms Agreement”) relating to such sale. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares Securities (the “Net Proceeds”). The Sales Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be made.
(v) The Sales Agent shall provide written confirmation to the Company as soon as practicable following the close of trading on the NYSE New York Stock Exchange each day in on which the Shares Securities are sold under this Section 4(a2(a) setting forth the aggregate amount of the Shares Securities sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares Securities pursuant to this Section 4(a2(a) will occur on the first business day second Trading Day following the date on which such sales are made or such other made, unless another date as may shall be agreed upon by the Company and the Sales Agent (provided that, if such Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day) (each such date, a “Settlement Date”). As used herein, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Securities sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company (through its transfer agent) to the Sales Agent against payment of the Net Proceeds for the sale of such SharesSecurities. Settlement for all such Shares Securities shall be effected by free delivery of electronically transferring the Shares Securities by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company DTC through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties heretoCompany and the Sales Agent, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, Company (or its transfer agent (if applicable), agent) shall default on its obligation to deliver the Shares Securities on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Sales Agent in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares Securities through DWAC for purposes of this Section 4(a)(vi2(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares Securities on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company hereinCompany, the Adviser and the Administrator, to the performance by the Company Company, the Adviser and the Administrator of its their obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 3 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares Securities other than as set forth in Section 4(a2(a) of this Agreement (each, a “Placement”)Agreement, it will may elect, in its sole discretion, to notify the Sales Agent of the proposed terms of such Placementsale. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. For avoidance of doubt, nothing contained in this Agreement shall be construed to require the Company to engage the Sales Agent in connection with the offer and sale of any of its securities, including shares of the Common Stock, whether in connection with an underwritten offering or otherwise.
(ic) In the event the Company engages the Sales Agent for a sale of Securities that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the 1934 Act, or a “distribution,” within the meaning of Rule 100 of Regulation M under the 1934 Act, the Company and the Sales Agent will agree to compensation that is customary for the Sales Agent with respect to such transactions.
(d) Under no circumstances shall the Company cause or request the offer or sale of any Securities if, after giving effect to the sale of such Securities, the aggregate gross sales proceeds or the aggregate number of Shares the Securities sold pursuant to this Agreement would exceed the number of Shares authorized from time to time to be issued amount available for offer and sold sale under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(iie) If either any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange 1934 Act are not satisfied with respect to the SharesSecurities, it shall promptly notify the other party parties and sales of the Shares Securities under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Sales Agent (which such request may be by electronic mail), the Sales Agent shall promptly calculate and provide in writing to the Company a report setting forth, for the prior week, the average daily trading volume (as defined in Rule 100 of Regulation M under the 1934 Act) of the Common Stock.
(df) Each sale of the Shares Securities to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement. The commitment of the Sales Agent to purchase the Securities pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the parties herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Securities to be purchased by the Sales Agent pursuant thereto, the price to be paid to the Company for such Securities, any provisions relating to rights of, and default by, underwriters acting together with the Sales Agent in the reoffering of the Securities, any provisions relating to the granting of an option to purchase additional Securities for the purpose of covering over-allotments, and the time and date (each such time and date being referred to herein as a “Date of Delivery”) and place of delivery of and payment for such Securities. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 5 hereof and any other information or documents required by the Sales Agent.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(fg) Subject to the such further limitations on offers and sales of Securities or delivery of instructions to offer and sell Securities as are set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, Agent offers and sales of Securities pursuant to this Agreement may shall not be requested by the Company and need not be made by the Sales Agent at any time when or during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the SharesSecurities, (B) the Sales Agent will not incur no liability or obligation to the Company or any other person or entity if it such Sales Agent does not sell Shares Securities for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Securities in accordance with the terms of this Agreement, Agreement and (C) the Sales Agent shall not be under no any obligation to purchase Shares Securities on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent and the Company. For purposes of clarification, the Sales Agent shall only be deemed to be acting as a sales agent under this Agreement during the period beginning with the delivery of a Placement Notice from the Company to the Sales Agent and ending upon the suspension or termination of such Placement Notice.
(i) The Company agrees that, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Securities or sales of Common Stock pursuant to any At the Market Offering (as defined herein and within the meaning of Rule 415(a)(4) under the 1933 Act) shall only be effected by or through the Sales Agent or any Other Agent. Notwithstanding the foregoing or anything to the contrary in this Agreement, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Securities or sales of Common Stock that do not constitute an At the Market Offering (as defined herein and within the meaning of Rule 415(a)(4) under the 1933 Act), including any underwritten offering or private placement transaction exempt from the requirements of the 1933 Act, may be effected by the Company by or through any person or entity in the Company’s sole discretion.
Appears in 6 contracts
Samples: Equity Distribution Agreement (PennantPark Floating Rate Capital Ltd.), Equity Distribution Agreement (PennantPark Floating Rate Capital Ltd.), Equity Distribution Agreement (PennantPark Floating Rate Capital Ltd.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.251.5% of the gross sales price of the Shares sold pursuant to this Section 4(a3(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent Manager from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(q)), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales AgentManager, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent Manager except (i) during the period that begins on the second business day after the filing of a quarterly report on Form 10-Q or an annual report on Form 10-K as of and within the period required by the Exchange Act and ends on the fourth business day prior to declaration of the Company’s regular quarterly dividend on shares of its Common Stock for the next succeeding fiscal quarter, inclusive, or (ii) during the period that begins on the second business day after declaration of the Company’s regular quarterly dividend on shares of its Common Stock and ends on the eleventh business day prior to the Company’s earnings release for its next succeeding fiscal quarter, inclusive; provided that no such period for sales begin until the Manager is in receipt of all required deliverables as specified in Sections 4(q), 4(r), 4(s), 4(t), 4(u) and 6(e) and has satisfactorily completed its diligence pursuant to Section 4(v). Notwithstanding the foregoing, without the prior written consent of each of the Company and the Manager, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager will be successful in selling the Shares, (B) the Sales Agent Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent Manager and the Company.
Appears in 5 contracts
Samples: Distribution Agency Agreement (Annaly Capital Management Inc), Distribution Agency Agreement (Annaly Capital Management Inc), Distribution Agency Agreement (Annaly Capital Management Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell Securities from time to time through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares Securities on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by Each time that the Company and the Sales Agent wishes to sell Securities on any day that (A) is a trading day for the NYSE New York Stock Exchange (a “Trading Day”) (other than a day Trading Day on which the NYSE New York Stock Exchange is scheduled to close prior to its regular weekday closing time) pursuant to this Agreement (each, a “Placement”), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to instruct the Sales Agent in writing of the parameters in accordance with which it desires Securities to be sold, which shall at a minimum include the number of Securities to be offered, the time period during which sales are requested to be made, the minimum price below which sales may not be made and any limitation on the number of Securities that may be sold in any one day (a “Placement Notice”). The Sales Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same business day (as defined below) on which such Placement Notice is delivered to the Sales Agent, issue to the Company a notice by email addressed to all of the Authorized Representatives (as defined below) confirming all of the parameters of the Placement. The Placement Notice shall be effective upon receipt by any of the Authorized Representatives of the email notice from the Sales Agent, unless and until (i) the entire amount of the Securities covered by the Placement Notice have been sold, (ii) in accordance with Section 2(a)(ii) hereof, the Company or the Sales Agent suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) this Agreement has been terminated under the provisions of Section 9. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Securities designated in the Placement Notice; provided, however, that the Sales Agent shall have no obligation to offer or sell any SharesSecurities, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, obligation in the event an offer or sale of the Shares Securities on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act 1934 Act, or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange 1934 Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is other than (A) by means of ordinary brokers’ transactions between members of the NYSE New York Stock Exchange that qualify for delivery of a Prospectus to the NYSE New York Stock Exchange in accordance with Rule 153 under the 1933 Act or (such B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the transactions described in (A) and (B) are hereinafter referred to as “At-the-At the Market Offerings”). In the event of a conflict between the terms of this Agreement and the terms of any Placement Notice, the terms of such Placement Notice will control.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agentmail from such party), suspend the offering of the Shares; Securities pursuant to this Agreement or suspend or terminate a previously issued Placement Notice; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares Securities sold hereunder prior to the giving of such notice. Each of the parties agrees that no such notice shall be effective against the other unless it is made to one of its authorized representatives as set forth on Schedule B hereto (the “Authorized Representatives”), as such Schedule may be amended from time to time.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares Securities on behalf of the Company, pursuant to this Section 4(a2(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares Securities on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The gross sales price of any Securities sold pursuant to this Agreement by the Sales Agent, as an agent of the Company, shall be the market price prevailing at the time of sale for Securities sold by the Sales Agent on the New York Stock Exchange or otherwise, at prices related to prevailing market prices or, subject to specific instructions of the Company, at negotiated prices. The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares Securities shall be at a mutually agreed rate up to 1.252.0% of the gross sales price of the Shares Securities sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and 2(a). The foregoing rate of compensation shall not apply when the Sales Agent from acts as principal, in which case the Company may sell Securities to the Sales Agent as principal at a price agreed upon at the relevant applicable time pursuant to timea separate agreement (each, a “Terms Agreement”) relating to such sale. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares Securities (the “Net Proceeds”). The Sales Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be made.
(v) The Sales Agent shall provide written confirmation to the Company as soon as practicable following the close of trading on the NYSE New York Stock Exchange each day in on which the Shares Securities are sold under this Section 4(a2(a) setting forth the aggregate amount of the Shares Securities sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares Securities pursuant to this Section 4(a2(a) will occur on the first business day Trading Day following the date on which such sales are made or such other made, unless another date as may shall be agreed upon by the Company and the Sales Agent (provided that, if such Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day) (each such date, a “Settlement Date”). As used herein, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Securities sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company (through its transfer agent) to the Sales Agent against payment of the Net Proceeds for the sale of such SharesSecurities. Settlement for all such Shares Securities shall be effected by free delivery of electronically transferring the Shares Securities by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company DTC through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties heretoCompany and the Sales Agent, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, Company (or its transfer agent (if applicable), agent) shall default on its obligation to deliver the Shares Securities on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Sales Agent in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares Securities through DWAC for purposes of this Section 4(a)(vi2(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares Securities on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company hereinCompany, the Adviser and the Administrator, to the performance by the Company Company, the Adviser and the Administrator of its their obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 3 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares Securities other than as set forth in Section 4(a2(a) of this Agreement (each, a “Placement”)Agreement, it will may elect, in its sole discretion, to notify the Sales Agent of the proposed terms of such Placementsale. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. For avoidance of doubt, nothing contained in this Agreement shall be construed to require the Company to engage the Sales Agent in connection with the offer and sale of any of its securities, including shares of the Common Stock, whether in connection with an underwritten offering or otherwise.
(ic) In the event the Company engages the Sales Agent for a sale of Securities that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the 1934 Act, or a “distribution,” within the meaning of Rule 100 of Regulation M under the 1934 Act, the Company and the Sales Agent will agree to compensation that is customary for the Sales Agent with respect to such transactions.
(d) Under no circumstances shall the Company cause or request the offer or sale of any Securities if, after giving effect to the sale of such Securities, the aggregate gross sales proceeds or the aggregate number of Shares the Securities sold pursuant to this Agreement would exceed the number of Shares authorized from time to time to be issued amount available for offer and sold sale under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(iie) If either any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange 1934 Act are not satisfied with respect to the SharesSecurities, it shall promptly notify the other party parties and sales of the Shares Securities under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Sales Agent (which such request may be by electronic mail), the Sales Agent shall promptly calculate and provide in writing to the Company a report setting forth, for the prior week, the average daily trading volume (as defined in Rule 100 of Regulation M under the 1934 Act) of the Common Stock.
(df) Each sale of the Shares Securities to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement. The commitment of the Sales Agent to purchase the Securities pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the parties herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Securities to be purchased by the Sales Agent pursuant thereto, the price to be paid to the Company for such Securities, any provisions relating to rights of, and default by, underwriters acting together with the Sales Agent in the reoffering of the Securities, any provisions relating to the granting of an option to purchase additional Securities for the purpose of covering over-allotments, and the time and date (each such time and date being referred to herein as a “Date of Delivery”) and place of delivery of and payment for such Securities. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 5 hereof and any other information or documents required by the Sales Agent.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(fg) Subject to the such further limitations on offers and sales of Securities or delivery of instructions to offer and sell Securities as are set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, Agent offers and sales of Securities pursuant to this Agreement may shall not be requested by the Company and need not be made by the Sales Agent at any time when or during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the SharesSecurities, (B) the Sales Agent will not incur no liability or obligation to the Company or any other person or entity if it such Sales Agent does not sell Shares Securities for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Securities in accordance with the terms of this Agreement, Agreement and (C) the Sales Agent shall not be under no any obligation to purchase Shares Securities on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent and the Company. For purposes of clarification, the Sales Agent shall only be deemed to be acting as a sales agent under this Agreement during the period beginning with the delivery of a Placement Notice from the Company to the Sales Agent and ending upon the suspension or termination of such Placement Notice.
(i) The Company agrees that, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Securities or sales of Common Stock pursuant to any At the Market Offering (as defined herein and within the meaning of Rule 415(a)(4) under the 1933 Act) shall only be effected by or through the Sales Agent or any Other Agent. Notwithstanding the foregoing or anything to the contrary in this Agreement, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Securities or sales of Common Stock that do not constitute an At the Market Offering (as defined herein and within the meaning of Rule 415(a)(4) under the 1933 Act), including any underwritten offering or private placement transaction exempt from the requirements of the 1933 Act, may be effected by the Company by or through any person or entity in the Company’s sole discretion.
Appears in 5 contracts
Samples: Equity Distribution Agreement (PennantPark Floating Rate Capital Ltd.), Equity Distribution Agreement (PennantPark Floating Rate Capital Ltd.), Equity Distribution Agreement (PennantPark Floating Rate Capital Ltd.)
Sale and Delivery of Securities. (a) On Upon the basis of the representations, representations and warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through to the Sales Agent, as sales agentrespective Underwriters, and each of the Sales Agent Underwriters, severally and not jointly, agrees to use its commercially reasonable efforts to sell, as sales agent for purchase from the Company, the Shares on number of Underwritten Securities set forth opposite the following termsname of such Underwriter in Schedule A hereto, subject to adjustment in accordance with Section 7 hereof, at a purchase price of $9.80 per Unit (the “Underwritten Purchase Price”). The Company is advised by the Representatives that the Underwriters intend (i) to make a public offering of their respective portions of the Securities as soon after the effectiveness of this Agreement as in the Representatives’ judgment is advisable and (ii) initially to offer the Securities upon the terms set forth in the Prospectus (the “Offering”). The Representatives may from time to time increase or decrease the public offering price of the Securities after the initial public offering to such extent as the Representatives may determine.
(b) In addition to the discount from the public offering price represented by the Underwritten Purchase Price set forth in the first sentence of Section 1(a) of this Agreement, the Company hereby agrees to pay to the Underwriters a deferred discount of $0.35 per Unit of the Securities purchased hereunder (the “Underwritten Deferred Discount”), which Underwritten Deferred Discount will be deposited and held in the Trust Account and payable directly from the Trust Account, without accrued interest, to the Representatives, on behalf of the Underwriters, upon the Company’s consummation of its initial Business Combination. The Underwriters hereby agree that if no Business Combination is consummated by the Company within the time period provided in the Trust Agreement and the funds held under the Trust Agreement are distributed to the holders of the Common Stock included in the Securities sold pursuant to this Agreement (the “Public Stockholders”), (i) the Underwriters will forfeit any rights or claims to the Underwritten Deferred Discount and (ii) the trustee under the Trust Agreement is authorized to distribute the Underwritten Deferred Discount to the Public Stockholders on a pro rata basis.
(c) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to 3,750,000 Option Securities, at a purchase price of $9.80 per Unit (the “Option Purchase Price”). Said option may be exercised only to cover over-allotments in the sale of the Underwritten Securities by the Underwriters. Said option may be exercised in whole or in part at any time on or before the 45th day after the date of the Prospectus upon written notice by the Representatives to the Company setting forth the number of Option Securities as to which the several Underwriters are exercising the option and the settlement date. The Shares are number of Option Securities to be sold purchased by each Underwriter shall be based upon the same percentage of the total number of the Option Securities to be purchased by the several Underwriters as such Underwriter is purchasing of the Underwritten Securities, subject to such adjustments as the Representatives in their absolute discretion shall make to eliminate any fractional shares.
(d) The Company hereby agrees to pay to the Underwriters a deferred discount of $0.35 per Unit of the Option Securities purchased hereunder (the “Option Deferred Discount” and together with the Underwritten Deferred Discount, the “Deferred Discount”), which Option Deferred Discount will be deposited and held in the Trust Account and payable directly from the Trust Account, without accrued interest, to the Representatives, on behalf of the Underwriters, upon the Company’s consummation of its initial Business Combination. The Underwriters hereby agree that if no Business Combination is consummated by the Company within the time period provided in the Trust Agreement and the funds held under the Trust Agreement are distributed to the Public Stockholders (i) the Underwriters will forfeit any rights or claims to the Option Deferred Discount and (ii) the trustee under the Trust Agreement is authorized to distribute the Option Deferred Discount to the Public Stockholders on a daily basis pro rata basis.
(e) Payment of the purchase price for the Securities shall be made to the Company by Federal Funds wire transfer against delivery of the certificates or otherwise security entitlements in respect of the Securities to the Representatives through the facilities of The Depository Trust Company (“DTC”) for the respective accounts of the Underwriters. Payment and delivery of the Underwritten Securities and the Option Securities (if the option provided for in Section 1(c) hereof shall have been exercised on or before the second Business Day prior to the Time of Purchase (as defined below)) shall be made at [__] A.M., New York City time, on [__], 2021 (unless another time shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, Representatives and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares shall be up to 1.25% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made unless postponed in accordance with the terms provisions of this Agreement or, if applicable, a Terms AgreementSection 7 hereof). The time at which such payment and delivery are to be made is herein referred to as the “Time of Purchase.
(e) Any offer, solicitation or sale ” Electronic transfer of the Shares Securities shall be effected by or through only one made to the Representatives at the Time of Purchase in such names and in such denominations as the Agents on any single trading dayRepresentatives shall specify.
(f) Subject If the option provided for in Section 1(c) hereof is exercised after the second Business Day prior to the limitations set forth herein and as may be mutually agreed upon Time of Purchase, the Company will deliver the Option Securities (at the expense of the Company) to the Representatives on the date specified by the Representatives (which shall be at least two Business Days after exercise of said option) for the respective accounts of the several Underwriters, against payment by the several Underwriters through the Representatives of the purchase price thereof. If settlement for any Option Securities occurs after the Time of Purchase, the Company will deliver to the Representatives on the settlement date for such Option Securities (an “Option Securities Settlement Date”), and the Sales Agentobligation of the Underwriters to purchase the Option Securities shall be conditioned upon receipt of, sales supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and letters delivered pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public informationSection 5 hereof.
(g) Notwithstanding any other provision of this AgreementCitigroup Global Markets Inc. and Xxxxx and Company, the Company shall LLC, each individually and not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues as a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent representative of the Sales Agent to such filing Underwriters, may (which consent but shall not be unreasonably withheld)obligated to) make payment of the purchase price for the Securities, (ii) provide if any, to be purchased by any Underwriter whose funds have not been received by the Sales Agent with the officers’ certificatesTime of Purchase or an Option Securities Settlement Date, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing but such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) payment shall not relieve the Company such Underwriter from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationhereunder.
(h) The Company acknowledges and agrees that (A) there can be no assurance that Deliveries of the Sales Agent will be successful documents described in selling the Shares, (B) the Sales Agent will incur no liability or obligation Section 5 hereof with respect to the Company or purchase of the Securities shall be made at the offices of DLA Piper LLP (US) at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at [__] A.M., New York City time, at the Time of Purchase and any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Option Securities Settlement Date. No “in accordance with the terms of this Agreementperson” closing shall be required, and (C) the Sales Agent shall deliveries of documents may be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed undertaken by the Sales Agent and the Companyelectronic means.
Appears in 3 contracts
Samples: Underwriting Agreement (Concord Acquisition Corp III), Underwriting Agreement (Concord Acquisition Corp II), Underwriting Agreement (Concord Acquisition Corp III)
Sale and Delivery of Securities. (a) On Upon the basis of the representations, representations and warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through to the Sales Agent, as sales agentrespective Underwriters, and each of the Sales Agent Underwriters, severally and not jointly, agrees to use its commercially reasonable efforts to sell, as sales agent for purchase from the Company, the Shares on number of Underwritten Securities set forth opposite the following termsname of such Underwriter in Schedule A hereto, subject to adjustment in accordance with Section 7 hereof, at a purchase price of $9.80 per Unit (the “Underwritten Purchase Price”). The Company is advised by the Representative that the Underwriters intend (i) to make a public offering of their respective portions of the Securities as soon after the effectiveness of this Agreement as in the Representative’s judgment is advisable and (ii) initially to offer the Securities upon the terms set forth in the Prospectus (the “Offering”). The Representative may from time to time increase or decrease the public offering price of the Securities after the initial public offering to such extent as the Representative may determine.
(b) In addition to the discount from the public offering price represented by the Underwritten Purchase Price set forth in the first sentence of Section 1(a) of this Agreement, the Company hereby agrees to pay to the Underwriters a deferred discount of $0.35 per Unit of the Securities purchased hereunder (the “Underwritten Deferred Discount”), which Underwritten Deferred Discount will be deposited and held in the Trust Account and payable directly from the Trust Account, without accrued interest, to the Representative, on behalf of the Underwriters, upon the Company’s consummation of its initial Business Combination. The Underwriters hereby agree that if no Business Combination is consummated by the Company within the time period provided in the Trust Agreement and the funds held under the Trust Agreement are distributed to the holders of the Public Shares sold pursuant to this Agreement (the “Public Stockholders”), (i) the Underwriters will forfeit any rights or claims to the Underwritten Deferred Discount and (ii) the trustee under the Trust Agreement is authorized to distribute the Underwritten Deferred Discount to the Public Stockholders on a pro rata basis.
(c) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to 2,625,000 Option Securities, at a purchase price of $9.80 per Unit (the “Option Purchase Price”). Said option may be exercised only to cover over-allotments in the sale of the Underwritten Securities by the Underwriters. Said option may be exercised in whole or in part at any time on or before the 45th day after the date of the Prospectus upon written notice by the Representative to the Company setting forth the number of Option Securities as to which the several Underwriters are exercising the option and the settlement date. The Shares are number of Option Securities to be sold purchased by each Underwriter shall be based upon the same percentage of the total number of the Option Securities to be purchased by the several Underwriters as such Underwriter is purchasing of the Underwritten Securities, subject to such adjustments as the Representative in its absolute discretion shall make to eliminate any fractional shares.
(d) The Company hereby agrees to pay to the Underwriters a deferred discount of $0.35 per Unit of the Option Securities purchased hereunder (the “Option Deferred Discount” and together with the Underwritten Deferred Discount, the “Deferred Discount”), which Option Deferred Discount will be deposited and held in the Trust Account and payable directly from the Trust Account, without accrued interest, to the Representative, on behalf of the Underwriters, upon the Company’s consummation of its initial Business Combination. The Underwriters hereby agree that if no Business Combination is consummated by the Company within the time period provided in the Trust Agreement and the funds held under the Trust Agreement are distributed to the Public Stockholders (i) the Underwriters will forfeit any rights or claims to the Option Deferred Discount and (ii) the trustee under the Trust Agreement is authorized to distribute the Option Deferred Discount to the Public Stockholders on a daily basis pro rata basis.
(e) Payment of the purchase price for the Securities shall be made to the Company by Federal Funds wire transfer against delivery of the certificates or otherwise security entitlements in respect of the Securities to the Representative through the facilities of The Depository Trust Company (“DTC”) for the respective accounts of the Underwriters. Payment and delivery of the Underwritten Securities and, if the option provided for in Section 1(c) hereof shall have been exercised on or before the second Business Day prior to the Time of Purchase (as defined below), the Option Securities related to such exercise, shall be made at 9:00 A.M., New York City time, on [*], 2021 (unless another time shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, Representative and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares shall be up to 1.25% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made unless postponed in accordance with the terms provisions of this Agreement or, if applicable, a Terms AgreementSection 7 hereof). The time at which such payment and delivery are to be made is herein referred to as the “Time of Purchase.
(e) Any offer, solicitation or sale ” Electronic transfer of the Shares Securities shall be effected by or through only one made to the Representative at the Time of Purchase in such names and in such denominations as the Agents on any single trading dayRepresentative shall specify.
(f) Subject If the option provided for in Section 1(c) hereof is exercised after the second Business Day prior to the limitations set forth herein and as may be mutually agreed upon Time of Purchase, the Company will deliver the Option Securities (at the expense of the Company) to the Representative, at 0 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 on the date specified by the Representative (which shall be at least two Business Days after exercise of said option) for the respective accounts of the several Underwriters, against payment by the several Underwriters through the Representative of the purchase price thereof. If settlement for any Option Securities occurs after the Time of Purchase, the Company will deliver to the Representative on the settlement date for such Option Securities (an “Option Securities Settlement Date”), and the Sales Agentobligation of the Underwriters to purchase the Option Securities shall be conditioned upon receipt of, sales supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and letters delivered pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public informationSection 5 hereof.
(g) Notwithstanding any other provision of this AgreementXxxxxx, the Company shall not offerXxxxxxxx & Company, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods Incorporated (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-KStifel”), in form individually and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent not as representative of the Sales Agent to such filing Underwriters, may (which consent but shall not be unreasonably withheld)obligated to) make payment of the purchase price for the Securities, (ii) provide if any, to be purchased by any Underwriter whose funds have not been received by the Sales Agent with the officers’ certificatesTime of Purchase or an Option Securities Settlement Date, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing but such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) payment shall not relieve the Company such Underwriter from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationhereunder.
(h) The Company acknowledges and agrees that (A) there can be no assurance that Deliveries of the Sales Agent will be successful documents described in selling the Shares, (B) the Sales Agent will incur no liability or obligation Section 5 hereof with respect to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by purchase of the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent Securities shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreementmade at the offices of Sidley Austin LLP at 000 Xxxxxxx Xxxxxx, except as otherwise specifically agreed by Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New York City time, at the Sales Agent and the CompanyTime of Purchase.
Appears in 3 contracts
Samples: Underwriting Agreement (NewHold Investment Corp. II), Underwriting Agreement (NewHold Investment Corp. II), Underwriting Agreement (NewHold Investment Corp. II)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Partnership agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the CompanyPartnership, the Shares Units on the following terms.
(i) The Shares Units are to be sold on a daily basis or otherwise as shall be agreed to by the Company Partnership and the Sales Agent Manager on any day that (A) is a trading day for the NYSE New York Stock Exchange (the “NYSE”) (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company Partnership through any of the individuals identified as authorized representatives of the Partnership in a certificate to be furnished by the Partnership to the Manager, as updated from time to time (the “Authorized Partnership Representatives”) has instructed the Sales Agent individuals identified by the Manager as authorized representatives of the Manager in a certificate to be furnished by the Manager to the Partnership, as updated from time to time (“Authorized Manager Representatives”), by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company Partnership has satisfied its obligations under Section 8 6 of this Agreement. The Company Partnership will designate the maximum amount of the Shares Units to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Units designated.
(ii) Notwithstanding the foregoing, the Partnership, through any of the Authorized Partnership Representatives, may instruct the Authorized Manager Representatives by telephone (confirmed promptly by electronic mail) not to sell the Units if such sales cannot be effected at or above the price designated by the Partnership in any such instruction. In addition, the Partnership or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Units; provided, however, that such suspension or termination shall not affect or impair the Sales Agent shall have no obligation parties’ respective obligations with respect to offer or sell any Shares, and the Company acknowledges Units sold hereunder prior to the giving of such notice.
(iii) The Manager hereby covenants and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale not to make any sales of the Shares Units on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is Partnership pursuant to this Section 3(a), other than (A) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus prospectus to the NYSE in accordance with Rule 153 under of the Act Rules (such transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership and the Sales AgentManager. The Manager has no obligations under Section 3(a)(i) to effect: (A) a sale of Units on behalf of the Partnership that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act, (B) an offer or sale of Units on behalf of the Partnership that would constitute a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act, or (C) an offer or sale in which the Manager reasonably believes it would be an “underwriter” under the Act in a transaction pursuant to this Agreement that is not an At-the-Market Offering.
(iv) The compensation to the Sales AgentManager, as an agent of the CompanyPartnership, for sales of the Shares Units pursuant to this Section 3(a) shall be up to 1.252% of the gross sales price of the Shares Units sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by specified in Schedule A attached hereto. Such rate of compensation shall not apply when the Company and the Sales Agent from time to timeManager acts as principal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company Partnership for such Shares Units (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company Partnership following the close of trading on the NYSE each day in which the Shares Units are sold under this Section 4(a3(a) setting forth the amount of the Shares Units sold on such day, the aggregate gross sales proceeds, any transaction fees deducted pursuant to Section 3(a)(iv), the Net Proceeds to the Company Partnership, and the compensation payable by the Company Partnership to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares Units pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”)) at such time on the applicable Settlement Date as the Partnership and the Manager may mutually agree. On each Settlement Date, the Shares Units sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company Partnership to the Sales Agent Manager against payment of the Net Proceeds for the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares by the Company or its transfer agent Units to the Sales AgentManager’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCommon Units, in return for payments in same day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if as applicable), shall default on its obligation to deliver the Shares Units on any Settlement Date, the Company Partnership shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company Partnership and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Partnership Representatives shall be the contact persons for the Company Partnership for all matters related to the settlement of the transfer of the Shares Units through DWAC for purposes of this Section 4(a)(vi3(a)(vi). If the Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date for the Units delivered by the Partnership, the Manager will pay the Partnership interest based on the effective overnight Federal Funds rate.
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(n)), the Company Partnership shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares Units on behalf of the Company Partnership shall be subject to the continuing accuracy of the representations and warranties of the Company Partnership herein, to the performance by the Company Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(viii) The Partnership acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Units, (B) the Manager will incur no liability or obligation to the Partnership or any other person or entity if it does not sell Units for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Units in accordance with the terms of this Agreement, and (C) the Manager shall be under no obligation to purchase Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Partnership. The Partnership hereby acknowledges that the Manager may trade in the Common Units for the Manager’s own account and for the account of its clients at the same time as sales of the Units occur pursuant to this Agreement.
(i) If the Company Partnership wishes to issue and sell the Shares Units other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyPartnership, wishes to accept amended terms, the Sales Agent Manager and the Company Partnership will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions The terms set forth in Rule 101(c)(1) a Terms Agreement will not be binding on the Partnership or the Manager unless and until the Partnership and the Manager have each executed such Terms Agreement accepting all of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.Terms
Appears in 3 contracts
Samples: Equity Distribution Agreement (Kinder Morgan Energy Partners L P), Equity Distribution Agreement (Kinder Morgan Energy Partners L P), Equity Distribution Agreement (Kinder Morgan Energy Partners L P)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Partnership agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the CompanyPartnership, the Shares Units on the following terms.
(i) The Shares Units are to be sold on a daily basis or otherwise as shall be agreed to by the Company Partnership and the Sales Agent Manager on any day that (A) is a trading day for the NYSE NASDAQ (a “Trading Day”) (other than a trading day on which the NYSE NASDAQ is scheduled to close prior to its regular weekday closing time), ; (B) the Company Partnership has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule B hereto hereto, as updated from time to time (the “Authorized Company Partnership Representatives”) to make such sales sales; and (C) the Company Partnership has satisfied its obligations under Section 8 6 of this Agreement. The Company Partnership will designate the maximum amount number of Units to be sold and the Shares to minimum price at which Units can be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount of Units available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Units designated on any day; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any SharesUnits, and the Company Partnership acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares Units on behalf of the Company Partnership may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE NASDAQ that qualify for delivery of a Prospectus to the NYSE NASDAQ in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”). On any Trading Day, the Partnership shall sell Units through the Manager or the Sales Manager, but in no event through both.
(ii) Notwithstanding the foregoing, the CompanyPartnership, through any of the Authorized Company Partnership Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares Units if such sales cannot be effected at or above the price designated by the Company Partnership in any such instruction. In addition, the Company Partnership or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Units; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Units sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares Units on behalf of the CompanyPartnership, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the CompanyPartnership, for sales of the Shares Units shall be up to 1.252.0% of the gross sales price of the Shares Units sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company Partnership for such Shares Units (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company Partnership following the close of trading on the NYSE NASDAQ each day in which the Shares Units are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares Units sold on such day, the aggregate gross sales proceeds, any transaction fees deducted pursuant to Section 3(a)(iv), the Net Proceeds to the Company Partnership, and the aggregate compensation payable by the Company Partnership to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares Units pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third Trading Day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company Partnership and the Sales Agent Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Units sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company Partnership to the Sales Agent Manager against payment of the Net Proceeds for the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares Units by the Company Partnership or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCommon Units eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares Units on any Settlement Date, the Company Partnership shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company Partnership; and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Partnership Representatives shall be the contact persons for the Company Partnership for all matters related to the settlement of the transfer of the Shares Units through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Eagle Rock Energy Partners L P), Equity Distribution Agreement (Eagle Rock Energy Partners L P)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and the Sales Agent has accepted such instruction and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under this Agreement under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings Offerings, (B) directly on or through any national securities exchange, alternative trading system or other market venue, (C) in the over-the-counter market, (D) in privately negotiated transactions, (E) by any other means permitted by law and (BF) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares shall be up to 1.252.0% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first second business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q5(r)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q5(r) through 5(u5(s), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v5(w) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q5(r) through 5(u5(v), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 2 contracts
Samples: Distribution Agency Agreement (Chimera Investment Corp), Distribution Agency Agreement (Chimera Investment Corp)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell Securities from time to time through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares Securities on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by Each time that the Company and the Sales Agent wishes to sell Securities on any day that (A) is a trading day for the NYSE Nasdaq Global Select Market (a “Trading Day”) (other than a day Trading Day on which the NYSE Nasdaq Global Select Market is scheduled to close prior to its regular weekday closing time) pursuant to this Agreement (each, a “Placement”), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to instruct the Sales Agent in writing of the parameters in accordance with which it desires Securities to be sold, which shall at a minimum include the number of Securities to be offered, the time period during which sales are requested to be made, the minimum price below which sales may not be made and any limitation on the number of Securities that may be sold in any one day (a “Placement Notice”). The Sales Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same business day (as defined below) on which such Placement Notice is delivered to the Sales Agent, issue to the Company a notice by email addressed to all of the Authorized Representatives (as defined below) confirming all of the parameters of the Placement. The Placement Notice shall be effective upon receipt by any of the Authorized Representatives of the email notice from the Sales Agent, unless and until (i) the entire amount of the Securities covered by the Placement Notice have been sold, (ii) in accordance with Section 2(a)(ii) hereof, the Company or the Sales Agent suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) this Agreement has been terminated under the provisions of Section 9. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Securities designated in the Placement Notice; provided, however, that the Sales Agent shall have no obligation to offer or sell any SharesSecurities, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, obligation in the event an offer or sale of the Shares Securities on behalf of the Company may in the judgment of the 00000000.0.XXXXXXXX Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act 1934 Act, or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange 1934 Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is other than (A) by means of ordinary brokers’ transactions between members of the NYSE Nasdaq Global Select Market that qualify for delivery of a Prospectus to the NYSE Nasdaq Global Select Market in accordance with Rule 153 under the 1933 Act or (such B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the transactions described in (A) and (B) are hereinafter referred to as “At-the-At the Market Offerings”). In the event of a conflict between the terms of this Agreement and the terms of any Placement Notice, the terms of such Placement Notice will control.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agentmail from such party), suspend the offering of the Shares; Securities pursuant to this Agreement or suspend or terminate a previously issued Placement Notice; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares Securities sold hereunder prior to the giving of such notice. Each of the parties agrees that no such notice shall be effective against the other unless it is made to one of its authorized representatives as set forth on Schedule B hereto (the “Authorized Representatives”), as such Schedule may be amended from time to time.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares Securities on behalf of the Company, pursuant to this Section 4(a2(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares Securities on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The gross sales price of any Securities sold pursuant to this Agreement by the Sales Agent, as an agent of the Company, shall be the market price prevailing at the time of sale for Securities sold by the Sales Agent on the Nasdaq Global Select Market or otherwise, at prices related to prevailing market prices or, subject to specific instructions of the Company, at negotiated prices. The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares Securities shall be at a mutually agreed rate up to 1.252.0% of the gross sales price of the Shares Securities sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and 2(a). The foregoing rate of compensation shall not apply when the Sales Agent from acts as principal, in which case the Company may sell Securities to the Sales Agent as principal at a price agreed upon at the relevant applicable time pursuant to timea separate agreement (each, a “Terms Agreement”) relating to such sale. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares Securities (the “Net Proceeds”). The Sales Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be made.
(v) The Sales Agent shall provide written confirmation to the Company as soon as practicable following the close of trading on the NYSE Nasdaq Global Select Market each day in on which the Shares Securities are sold under this Section 4(a2(a) setting forth the aggregate 00000000.0.XXXXXXXX amount of the Shares Securities sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares Securities pursuant to this Section 4(a2(a) will occur on the first business day second Trading Day following the date on which such sales are made or such other made, unless another date as may shall be agreed upon by the Company and the Sales Agent (provided that, if such Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day) (each such date, a “Settlement Date”). As used herein, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Securities sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company (through its transfer agent) to the Sales Agent against payment of the Net Proceeds for the sale of such SharesSecurities. Settlement for all such Shares Securities shall be effected by free delivery of electronically transferring the Shares Securities by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company DTC through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties heretoCompany and the Sales Agent, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, Company (or its transfer agent (if applicable), agent) shall default on its obligation to deliver the Shares Securities on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Sales Agent in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares Securities through DWAC for purposes of this Section 4(a)(vi2(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares Securities on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company hereinCompany, the Adviser and the Administrator, to the performance by the Company Company, the Adviser and the Administrator of its their obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 3 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares Securities other than as set forth in Section 4(a2(a) of this Agreement (each, a “Placement”)Agreement, it will may elect, in its sole discretion, to notify the Sales Agent of the proposed terms of such Placementsale. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number . For avoidance of Shares sold pursuant to doubt, nothing contained in this Agreement exceed shall be construed to require the number of Shares authorized from time Company to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to engage the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of offer and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery sale of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.its
Appears in 2 contracts
Samples: Equity Distribution Agreement (PennantPark Floating Rate Capital Ltd.), Equity Distribution Agreement (PennantPark Floating Rate Capital Ltd.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell Securities from time to time through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares Securities on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by Each time that the Company and the Sales Agent wishes to sell Securities on any day that (A) is a trading day for the NYSE Nasdaq Global Select Market (a “Trading Day”) (other than a day Trading Day on which the NYSE Nasdaq Global Select Market is scheduled to close prior to its regular weekday closing time) pursuant to this Agreement (each, a “Placement”), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to instruct the Sales Agent in writing of the parameters in accordance with which it desires Securities to be sold, which shall at a minimum include the number of Securities to be offered, the time period during which sales are requested to be made, the minimum price below which sales may not be made and any limitation on the number of Securities that may be sold in any one day (a “Placement Notice”). The Sales Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same business day (as defined below) on which such Placement Notice is delivered to the Sales Agent, issue to the Company a notice by email addressed to all of the Authorized Representatives (as defined below) confirming all of the parameters of the Placement. The Placement Notice shall be effective upon receipt by any of the Authorized Representatives of the email notice from the Sales Agent, unless and until (i) the entire amount of the Securities covered by the Placement Notice have been sold, (ii) in accordance with Section 2(a)(ii) hereof, the Company or the Sales Agent suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) this Agreement has been terminated under the provisions of Section 9. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Securities designated in the Placement Notice; provided, however, that the Sales Agent shall have no obligation to offer or sell any SharesSecurities, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, obligation in the event an offer or sale of the Shares Securities on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act 1934 Act, or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange 1934 Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is other than (A) by means of ordinary brokers’ transactions between members of the NYSE Nasdaq Global Select Market that qualify for delivery of a Prospectus to the NYSE Nasdaq Global Select Market in accordance with Rule 153 under the 1933 Act or (such B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the transactions described in (A) and (B) are hereinafter referred to as “At-the-At the Market Offerings”). In the event of a conflict between the terms of this Agreement and the terms of any Placement Notice, the terms of such Placement Notice will control.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agentmail from such party), suspend the offering of the Shares; Securities pursuant to this Agreement or suspend or terminate a previously issued Placement Notice; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares Securities sold hereunder prior to the giving of such notice. Each of the parties agrees that no such notice shall be effective against the other unless it is made to one of its authorized representatives as set forth on Schedule B hereto (the “Authorized Representatives”), as such Schedule may be amended from time to time.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares Securities on behalf of the Company, pursuant to this Section 4(a2(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares Securities on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The gross sales price of any Securities sold pursuant to this Agreement by the Sales Agent, as an agent of the Company, shall be the market price prevailing at the time of sale for Securities sold by the Sales Agent on the Nasdaq Global Select Market or otherwise, at prices related to prevailing market prices or, subject to specific instructions of the Company, at negotiated prices. The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares Securities shall be at a mutually agreed rate up to 1.252.0% of the gross sales price of the Shares Securities sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and 2(a). The foregoing rate of compensation shall not apply when the Sales Agent from acts as principal, in which case the Company may sell Securities to the Sales Agent as principal at a price agreed upon at the relevant applicable time pursuant to timea separate agreement (each, a “Terms Agreement”) relating to such sale. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares Securities (the “Net Proceeds”). The Sales Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be made.
(v) The Sales Agent shall provide written confirmation to the Company as soon as practicable following the close of trading on the NYSE Nasdaq Global Select Market each day in on which the Shares Securities are sold under this Section 4(a2(a) setting forth the aggregate amount of the Shares Securities sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares Securities pursuant to this Section 4(a2(a) will occur on the first business day second Trading Day following the date on which such sales are made or such other made, unless another date as may shall be agreed upon by the Company and the Sales Agent (provided that, if such Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day) (each such date, a “Settlement Date”). As used herein, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Securities sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company (through its transfer agent) to the Sales Agent against payment of the Net Proceeds for the sale of such SharesSecurities. Settlement for all such Shares Securities shall be effected by free delivery of electronically transferring the Shares Securities by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company DTC through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties heretoCompany and the Sales Agent, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, Company (or its transfer agent (if applicable), agent) shall default on its obligation to deliver the Shares Securities on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Sales Agent in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares Securities through DWAC for purposes of this Section 4(a)(vi2(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares Securities on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company hereinCompany, the Adviser and the Administrator, to the performance by the Company Company, the Adviser and the Administrator of its their obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 3 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares Securities other than as set forth in Section 4(a2(a) of this Agreement (each, a “Placement”)Agreement, it will may elect, in its sole discretion, to notify the Sales Agent of the proposed terms of such Placementsale. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. For avoidance of doubt, nothing contained in this Agreement shall be construed to require the Company to engage the Sales Agent in connection with the offer and sale of any of its securities, including shares of the Common Stock, whether in connection with an underwritten offering or otherwise.
(ic) In the event the Company engages the Sales Agent for a sale of Securities that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the 1934 Act, or a “distribution,” within the meaning of Rule 100 of Regulation M under the 1934 Act, the Company and the Sales Agent will agree to compensation that is customary for the Sales Agent with respect to such transactions.
(d) Under no circumstances shall the Company cause or request the offer or sale of any Securities if, after giving effect to the sale of such Securities, the aggregate gross sales proceeds or the aggregate number of Shares the Securities sold pursuant to this Agreement would exceed the number of Shares authorized from time to time to be issued amount available for offer and sold sale under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(iie) If either any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange 1934 Act are not satisfied with respect to the SharesSecurities, it shall promptly notify the other party parties and sales of the Shares Securities under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Sales Agent (which such request may be by electronic mail), the Sales Agent shall promptly calculate and provide in writing to the Company a report setting forth, for the prior week, the average daily trading volume (as defined in Rule 100 of Regulation M under the 0000 Xxx) of the Common Stock.
(df) Each sale of the Shares Securities to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement. The commitment of the Sales Agent to purchase the Securities pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the parties herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Securities to be purchased by the Sales Agent pursuant thereto, the price to be paid to the Company for such Securities, any provisions relating to rights of, and default by, underwriters acting together with the Sales Agent in the reoffering of the Securities, any provisions relating to the granting of an option to purchase additional Securities for the purpose of covering over-allotments, and the time and date (each such time and date being referred to herein as a “Date of Delivery”) and place of delivery of and payment for such Securities. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 5 hereof and any other information or documents required by the Sales Agent.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(fg) Subject to the such further limitations on offers and sales of Securities or delivery of instructions to offer and sell Securities as are set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, Agent offers and sales of Securities pursuant to this Agreement may shall not be requested by the Company and need not be made by the Sales Agent at any time when or during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the SharesSecurities, (B) the Sales Agent will not incur no liability or obligation to the Company or any other person or entity if it such Sales Agent does not sell Shares Securities for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Securities in accordance with the terms of this Agreement, Agreement and (C) the Sales Agent shall not be under no any obligation to purchase Shares Securities on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent and the Company. For purposes of clarification, the Sales Agent shall only be deemed to be acting as a sales agent under this Agreement during the period beginning with the delivery of a Placement Notice from the Company to the Sales Agent and ending upon the suspension or termination of such Placement Notice.
(i) The Company agrees that, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Securities or sales of Common Stock pursuant to any At the Market Offering (as defined herein and within the meaning of Rule 415(a)(4) under the 0000 Xxx) shall only be effected by or through the Sales Agent or the Other Agent. Notwithstanding the foregoing or anything to the contrary in this Agreement, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Securities or sales of Common Stock that do not constitute an At the Market Offering (as defined herein and within the meaning of Rule 415(a)(4) under the 1933 Act), including any underwritten offering or private placement transaction exempt from the requirements of the 1933 Act, may be effected by the Company by or through any person or entity in the Company’s sole discretion.
Appears in 2 contracts
Samples: Equity Distribution Agreement (PennantPark Floating Rate Capital Ltd.), Equity Distribution Agreement (PennantPark Floating Rate Capital Ltd.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (a "Trading Day") (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B C hereto (the “"Authorized Company Representatives”") to make such sales and (C) the Company has satisfied its obligations under Section 8 5 of this Agreement. The Company will designate the maximum amount number of the Shares to be sold by the Sales Agent Manager daily or as otherwise agreed to by the Sales Agent Manager and the Company and in any event not in excess of the amount of Shares available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s 's board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated on any day; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent Manager constitute the sale of a “"block” " under Rule 10b-18(a)(5) under the Exchange Act or a “"distribution” " within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “"underwriter” " under the Act in a transaction that is other than by means of ordinary brokers’ ' transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers' transactions are hereinafter referred to as “At-the-"At the Market Offerings”").
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by mail from the Company and the Sales AgentCompany) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction, which price shall not be below the par value of the Common Stock. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agentmail from such party), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ ' respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.252% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “"Net Proceeds”").
(v) The Sales Agent Manager shall provide written confirmation to the Company as soon as practicable following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third trading day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company and the Sales Agent Manager (each such date, a “"Settlement Date”"). As used in the preceding sentence and in Section 6 below, the term "business day" means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s Manager's account, or to the account of the Sales Agent’s Manager's designee, at The Depository Trust Company ("DTC") through its Deposit and Withdrawal at Custodian System (“"DWAC”") or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement or as set forth in Section 3(a) of any Alternative Equity Distribution Agreement (each, a “"Placement”"), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ii) In the event the Company engages the Manager for a sale of Shares that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act, the Company and the Manager will agree to compensation that is customary for the Manager with respect to such transactions.
(i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement and any Alternative Equity Distribution Agreement would exceed the number lesser of Shares (A) the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement and any Alternative Equity Distribution Agreement by the Company’s 's board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares at a price lower than the minimum price authorized from time to time by the Company's board of directors or a duly authorized committee thereof, and notified to the Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Alternative Equity Sales Distribution Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Manager (which such request may be by electronic mail), the Manager shall promptly calculate and provide in writing to the Company a report setting forth, for the prior week, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(d) Each sale of the Shares to or through the Sales Agent Manager or any Alternative Manager, as applicable, shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement, or the respective Alternative Equity Distribution Agreement or, if applicable, an Alternative Terms Agreement, as applicable.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Shares or delivery of instructions to offer and sell Shares as are set forth herein herein, or in any Alternative Equity Distribution Agreement, and as may be mutually agreed upon by the Company and the Sales AgentManager or any Alternative Manager, as applicable, offers and sales of Shares pursuant to this Agreement may or any Alternative Equity Distribution Agreement, as applicable, shall not be requested by the Company and need not be made by the Sales Agent Manager or any Alternative Manager, as applicable, at any time when or during any period in which the Company is or could be deemed to be, be in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager or any Alternative Manager will be successful in selling the Shares, (B) neither the Sales Agent Manager nor any Alternative Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Manager or any Alternative Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement or any Alternative Equity Distribution Agreement, as applicable, and (C) neither the Sales Agent Manager nor any Alternative Manager shall be under no any obligation to purchase Shares on a principal basis pursuant to this Agreement or any Alternative Equity Distribution Agreement, as applicable, except as otherwise specifically agreed in writing by the Sales Agent Manager and the Company or any Alternative Manager and the Company, as applicable.
(g) The Company agrees that, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Shares or sales of Common Stock in Rule 415(a)(4) Offerings shall only be effected by or through the Manager or an Alternative Manager, but in no event by more than one Manager on any single given day, and the Company shall in no event request that the Manager or any Alternative Manager sell Shares on the same day.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Omega Healthcare Investors Inc), Equity Distribution Agreement (Omega Healthcare Investors Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE New York Stock Exchange (“NYSE”) (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell on a particular day all of the Shares designated; provided, however, that designated for the Sales Agent shall have no obligation to offer or sell any Shares, and sale by the Company acknowledges and agrees that the Sales Agent shall have no on such obligation, in the event an offer or sale day. The gross sales of the Shares on behalf sold under this Section 3(a) shall be the market price for shares of the Company may in Company’s Common Stock sold by the judgment Manager under this Section 3(a) on the NYSE at the time of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”)Shares.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors and notified to the Manager in writing. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy), suspend the offering of the Shares; Shares; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 of the 1933 Act Regulations (such transactions are hereinafter referred to as “At-the-Market Offerings Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager for sales of the Shares, as an agent of the Company, for sales of the Shares shall be up to 1.252% of the gross sales price of the Shares sold pursuant to this Section 4(a) or 3(a), and such lower amount rate of compensation shall not apply when the Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeprincipal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount number of the Shares sold on such day, the aggregate gross sales proceeds and the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur at 10:00 a.m. (Eastern time), or at such other time as the Company and the Manager may mutually agree, on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi)effective overnight Federal Funds rate.
(vii) At each Time of SaleSettlement Date, Settlement Date and Representation Registration Statement Amendment Date (as defined in Section 5(q4(p)) and Filing Date (as defined below), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. The Company covenants and agrees with the Manager that (A) with respect to each of the Company’s first three fiscal quarters of fiscal year 2009 and of each fiscal year thereafter, on or prior to the date on which the Company shall be obligated to file a Quarterly Report on Form 10-Q in respect of such quarter and (B) with respect to the Company’s fourth fiscal quarter for fiscal year 2008 and for each year thereafter, on or prior to the fortieth day after the end of such quarter in which sales of the Shares were made by the Manager pursuant to this Section 3(a) (each such date, and any date on which an amendment to any such document is filed, a “Filing Date”) (or such shorter period as may in the future be mandated by the Commission as a filing deadline for Forms 10-Q for registrants such as the Company), the Company will file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b), which prospectus supplement will set forth, with regard to such quarter, the number of the Shares sold through the Manager as agent pursuant to this Section 3(a) in At-the-Market Offerings, the Net Proceeds to the Company and the compensation paid by the Company with respect to such sales of the Shares pursuant to this Section 3(a) and deliver such number of copies of each such prospectus supplement to the NYSE as are required by such exchange. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(i) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 4(a3(a) of this Agreement or as set forth in Section 3(a) of the Alternative Equity Distribution Agreement, as the case may be (each, each a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyCompany and, if applicable, the Alternative Manager, wishes to accept amended terms, the Sales Agent and Manager, the Company and, if applicable, the Alternative Manager will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any a Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the number and aggregate number amount of the Shares sold pursuant to this Agreement, any Terms Agreement, the Alternative Equity Distribution Agreement and any Alternative Terms Agreement exceed either the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent aggregate amount set forth in writingSection 1.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange 1934 Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Manager shall calculate on a weekly basis the average daily trading volume (as defined by Rule 100 of Regulation M under the 0000 Xxx) of the Common Stock.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement orand, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(e) Any offer, solicitation or sale Until such time as the Company notifies the Manager of the Company’s election not to be bound by this paragraph (e), which election shall be exercisable in the Company’s sole discretion, the Company agrees that unless and until the aggregate offering price of Shares sold pursuant to the Distribution Agreements or any Terms Agreement reaches $160,000,000, the Company shall sell all Shares sold pursuant hereto and thereto through UBS Securities LLC, and thereafter, the Company may sell Shares through or to either the Manager or the Alternative Manager.
(f) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares or any other equity security of the Company shall only be effected by or through only one of the Agents Manager or the Alternative Manager on any single trading given day, but in no event by both, and the Company shall in no event request that the Manager and the Alternative Manager sell Shares on the same day; provided, however, that (a) the foregoing limitation shall not apply to (i) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement.
(fg) Subject to the limitations set forth herein and as may be mutually agreed upon by Notwithstanding any other provision of this Agreement, the Company and the Sales AgentManager agree that no sales of Shares shall take place, sales pursuant to this Agreement may and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be requested by the Company and need not be made by the Sales Agent obligated to sell, during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of the Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, or during any other period in which the Company is is, or could be deemed to be, in possession of material non-public information.
; provided that, unless otherwise agreed between the Company and the Managers, for purposes of this paragraph (g) Notwithstanding any other provision of this Agreement, such period shall be deemed to end on the Company shall not offer, sell or deliver, or request date on which the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Company’s next subsequent Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periodsQuarterly Report on Form 10-Q, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K is filed with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that Until the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms termination of this Agreement, the Manager and (C) its affiliates will not take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in the Sales Agent shall be under no obligation stabilization or manipulation of the price of any security of the Company to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by facilitate the Sales Agent and sale or resale of the CompanyShares.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Continental Airlines Inc /De/), Equity Distribution Agreement (Continental Airlines Inc /De/)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on a best efforts basis, up to that number of shares of Stock as may be directed by the Shares Company during the term of this Agreement, on the following terms.
(i) terms set forth herein. The Shares are to Stock will be sold on a daily basis or otherwise from time to time as shall be agreed described in the Registration Statement and Prospectus, in amounts, and subject to price limitations, as directed by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and Manager. The Sales Manager may sell the Stock by any method permitted by law deemed to be an “at the market” offering as defined in any event not in excess Rule 415 of the amount Act. The Sales manager will sell the Stock into the existing trading market at the prevailing market price at the time of sale in ordinary brokerage transactions. Such sales will be open to all market participants and the Sales Manager will make the Stock available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or same way it makes available any Registration Statement filed pursuant other securities that it is requested to Section 5(g), or sell by any shareholder of any issuer. The parties acknowledge and agree that in a number in excess of effecting the number of Shares authorized from time to time to be issued and sold “at the market” transactions under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereofAgreement, the Sales Agent shall use its commercially reasonable efforts to offer Manager will make the sales on an agency basis and sell all not take ownership of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer shares sold or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares otherwise act on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”)principal basis.
(iib) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the The Company or the Sales Agent Manager may, upon notice to the other party hereto in writing (including by email correspondence) or by telephone (if confirmed promptly by electronic mail) (facsimile or as otherwise agreed to by the Company and the Sales Agentemail), at any time and from time to time suspend the offering of the Shares; Stock; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Stock sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(ivc) The compensation to the Sales Agent, as an agent of the Company, Manager for sales of the Shares Stock shall be up to 1.25at a fixed commission rate of 3% of the gross sales price of per share for the Shares Stock sold pursuant to under this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of to such sales, sale shall constitute the net proceeds to the Company for such Shares Stock (the “Net Proceeds”).
(vd) Each time that the Company wishes to issue and sell the Stock hereunder it will notify the Sales Manager by email notice (or other method mutually agreed to in writing by the parties) (a “Trading Instruction”) containing the parameters in accordance with which it desires the Stock to be sold, which shall at a minimum include the number/amount of shares of Stock to be issued, the time period during which sales are requested to be made, any limitation on the number/amount of shares of Stock that may be sold in any one trading day and any minimum price below which sales may not be made. The Company shall open and maintain a trading account (the “Trading Account”) at a clearing agent designated by the Sales Manager to facilitate the transactions contemplated by this Agreement. The Sales Agent Manager shall provide a written confirmation report (which may be by facsimile or electronic mail) to the Company following the close of trading on the NYSE each day in which the Shares are Stock is sold under this Section 4(a) Agreement setting forth the amount number of the Shares shares of Stock sold on such day, the aggregate gross sales proceeds and the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales . The Company shall, with respect to each sale of Stock, effect delivery of the Shares pursuant applicable number of shares of Stock to this Section 4(a) will occur the Trading Account, on or before the first third business day following the date on which such sales are made (or such other date day as may be agreed by is industry practice for regular-way trading) following each sale of the Company and the Sales Agent Stock (each such dateeach, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the The Net Proceeds for from the sale of such Shares. Settlement for all such Shares the Stock shall be effected by free delivery of available in the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to Trading Account following the settlement of the transfer of sale on the Shares through DWAC for purposes of this Section 4(a)(vi)Settlement Date. The Sales Manager’s compensation shall be withheld from the sales proceeds on each Settlement Date and shall be paid to the Sales Manager.
(viie) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q))Date, the Company shall be deemed to have affirmed each of their respective representations representation, warranty, covenant and warranties other agreement contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company Manager under this Agreement shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this AgreementArticle IV herein.
(if) If the Company wishes shall default on its obligation to issue and sell deliver Stock on any Settlement Date, the Shares other than as set forth in Section 4(aCompany shall (i) of this Agreement (each, a “Placement”), it will notify hold the Sales Agent of the proposed terms Manager harmless against any loss, claim or damage arising from or as a result of such Placementdefault by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default. If the Sales Agent, acting as principal, wishes Manager shall default on its obligation to accept such proposed terms (which it may decline to do deliver the Net Proceeds on any Settlement Date for any reason in its sole discretion) or, following discussions with the Stock delivered by the Company, wishes to accept amended terms, the Sales Agent and Manager shall pay the Company will enter into a Terms Agreement setting forth interest based on the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will controleffective overnight federal funds rate.
(ig) Under no circumstances shall the number and aggregate number amount of Shares the Stock sold by the Sales Manager pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied shares indicated in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationTrading Instructions.
(h) The Company Sales Manager acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling Manager shall conduct any sale of the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this AgreementStock, and (C) any related activities in respect thereof, in compliance with Regulation M under the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the CompanyExchange Act.
Appears in 2 contracts
Samples: Sales Agreement (Opexa Therapeutics, Inc.), Sales Agreement (Opexa Therapeutics, Inc.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Partnership agrees to issue and sell through the Sales AgentManagers, as sales agentagents, and the Sales Agent each Manager agrees to use its commercially reasonable efforts to sell, as sales agent agents for the CompanyPartnership, the Shares Units on the following terms.
(i) The Shares Units are to be sold on a daily basis or otherwise as shall be agreed to by the Company Partnership and the Sales Agent such Manager on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company Partnership has instructed the Sales Agent such Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule B D hereto (the “Authorized Company Partnership Representatives”) to make such sales and (C) the Company Partnership has satisfied its obligations under Section 8 6 of this Agreement. The Company Partnership will designate the maximum amount number of the Shares Units to be sold and the minimum price per Unit at which such Units may be sold by the Sales Agent such Manager daily as agreed to by the Sales Agent such Manager and in any event not in excess of the amount of Units available for issuance under the currently effective Registration Statement relating to and the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, Prospectus or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares Units authorized from time to time to be issued and sold under this Agreement by the CompanyETP LLC’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent such Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent such Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Units designated on any day; provided, however, that the Sales Agent such Manager shall have no obligation to offer or sell any SharesUnits, and the Company Partnership acknowledges and agrees that the Sales Agent such Manager shall have no such obligation, in the event an offer or sale of the Shares Units on behalf of the Company Partnership may in the judgment of the Sales Agent such Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent such Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”)Act.
(ii) Notwithstanding the foregoing, the CompanyPartnership, through any of the Authorized Company Partnership Representatives, may instruct the Sales Agent such Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares Units if such sales cannot be effected at or above the price designated by the Company Partnership in any such instruction. In addition, the Company Partnership or the Sales Agent such Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Units for any reason and at any time (a “Suspension”); provided, however, that such suspension Suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Units sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Each Manager hereby covenants and agrees not to make any sales of the Shares Units on behalf of the CompanyPartnership, pursuant to this Section 4(a3(a), other than (A) by means of At-the-Market Offerings any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act, including, without limitation, sales made directly on the NYSE, on any other existing trading market for the Common Units or to or through a market maker, (B) by any other method permitted by law, including, without limitation, in privately negotiated transactions, and (BC) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership and the Sales Agentsuch Manager.
(iv) The compensation to the Sales Agenteach Manager, as an agent of the CompanyPartnership, for sales of the Shares Units shall be up to 1.252% of the gross sales price of the Shares Units sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon to in writing by the Company such Manager(s) and the Sales Agent from time to timePartnership. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company Partnership for such Shares Units (the “Net Proceeds”).
(v) The Sales Agent Each Manager shall provide written confirmation to the Company Partnership following the close of trading on the NYSE each day in which the Shares Units are sold under this Section 4(a) 3(a), setting forth the aggregate amount of the Shares Units sold on such day, the aggregate Net Proceeds to the Company Partnership, and the aggregate compensation payable by the Company Partnership to the Sales Agent such Manager with respect to such sales.
(vi) Settlement for sales of the Shares Units pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third trading day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company Partnership and the Sales Agent such Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Units sold through the Sales Agent such Manager for settlement on such date shall be issued and delivered by the Company Partnership to the Sales Agent such Manager against payment of the Net Proceeds for the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares Units by the Company Partnership or its transfer agent to the Sales Agentsuch Manager’s account, or to the account of the Sales Agentsuch Manager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formunits eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares Units on any Settlement Date, the Company Partnership shall (A) indemnify and hold the Sales Agent such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company Partnership and (B) pay the Sales Agent such Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Partnership Representatives shall be the contact persons for the Company Partnership for all matters related to the settlement of the transfer of the Shares Units through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(q)), the Company Partnership shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent any Manager to use its commercially reasonable efforts to sell the Shares Units on behalf of the Company Partnership shall be subject to the continuing accuracy of the representations and warranties of the Company Partnership herein, to the performance by the Company Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company Partnership wishes to issue and sell the Shares Units other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent a Manager of the proposed terms of such Placement. If the Sales Agentsuch Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyPartnership, wishes to accept amended terms, the Sales Agent such Manager and the Company Partnership will enter into a Terms Agreement setting forth the terms of such Placement, and such Terms Agreement will not be binding on the Partnership or such Manager unless and until the Partnership and such Manager have executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the Partnership cause or request the offer or sale of any Units if, after giving effect to the sale of such Units, the aggregate number of Shares sold gross sales proceeds pursuant to this Agreement would exceed the number lesser of Shares (A) the amount set forth in Section 1, (B) the amount available for offer and sale under the currently effective Registration Statement and the Prospectus and (C) the amount authorized from time to time to be issued and sold under this Agreement by the CompanyETP LLC’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Managers in writing. Under no circumstances shall the Partnership cause or request the offer or sale of any Units at a price lower than the minimum price authorized from time to time by ETP LLC’s board of directors or a duly authorized committee thereof, and notified to the Managers in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the SharesUnits, it shall promptly notify the other party and sales of the Shares Units under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares Units to or through the Sales Agent any Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Units or delivery of instructions to offer and sell Units as are set forth herein and as may be mutually agreed upon by the Company Partnership and any Manager, the Sales AgentPartnership shall not request the sale of any Units that would be sold, sales pursuant and no Manager shall be obligated to this Agreement may not be requested by sell, (i) during the Company and need not be made by 14 calendar days prior to the Sales Agent during any period in date (each, an “Announcement Date”) on which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company Partnership shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods of operations (each, an “Earnings Announcement”), (ii) at any time from and including an Announcement Date through and including the Representation Date time that occurs in connection with is 24 hours after the Company filing time that the Partnership files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, or (iii) during any other period in which the Partnership is, or could be deemed to be, in possession of material non-public information; provided that, unless otherwise agreed between the Company shall first Partnership and any Manager, for purposes of (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide above, such period shall be deemed to end 24 hours after the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationnext subsequent Filing Time.
(hf) The Company Partnership acknowledges and agrees that (A) there can be no assurance that the Sales Agent any Manager will be successful in selling the SharesUnits, (B) the Sales Agent no Manager will incur no any liability or obligation to the Company Partnership or any other person or entity if it such Manager does not sell Shares Units for any reason other than a failure by the Sales Agent such Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Units in accordance with the terms of this Agreement, and (C) the Sales Agent each Manager shall be under no obligation to purchase Shares Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent such Manager and the CompanyPartnership.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Energy Transfer Partners, L.P.), Equity Distribution Agreement (Energy Transfer Partners, L.P.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares on the following terms.
(i) Shares. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares sought to be sold by the Sales Agent daily as reasonably agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; so designated by the Company. Notwithstanding the foregoing, the Company may instruct the Agent by telephone (confirmed promptly by telecopy) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Agent shall not be obligated to use its reasonable efforts to sell, any Shares at a price lower than the minimum price therefor designated from time to time by the Company’s board of directors and notified to the Agent in writing. In addition, the Company or the Agent may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the Sales Agent parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Under no circumstances shall have no obligation the number of Shares sold pursuant to offer this Agreement exceed the number set forth in Section 1 or sell any Shares, and the Company acknowledges and agrees number of shares of Common Stock available for issuance under the currently effective Registration Statement. If either party has reason to believe that the Sales Agent shall have no such obligation, exemptive provisions set forth in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5101(c)(1) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Sales Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Agent reasonably believes it may be deemed an “underwriter” under hereby covenants and agrees not to make any sales of Shares on behalf of the Act in a transaction that is Company other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through Securities Act. The gross sales price of any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to under this Agreement shall be the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf market price for shares of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed ’s Common Stock sold by the Company and Agent under this Agreement on the Sales Agent.
(iv) NYSE at the time of such sale. The compensation payable to the Sales Agent, as an agent of the Company, Agent for sales of the Shares shall be up equal to 1.252.00% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) . The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) Agreement setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) . Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first third business day following the trade date on which such sales are made or such other made, unless another date as may shall be agreed to by the Company and the Sales Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for from the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments by the Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to the an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Agent breaches this Agreement by failing to deliver the applicable Net Proceeds on any Settlement Date for Shares delivered by the Company, the Agent will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) effective overnight federal funds rate. At each Time of SaleApplicable Time, each Settlement Date and Representation Date (as defined in Section 5(q))each Filing Date, the Company shall be deemed to have affirmed each of their respective representations representation, warranty, covenant and warranties other agreement contained in this Agreement. The Company covenants and agrees with the Agent that on or prior to the earlier of (x) four business days after any date on which the Company shall file an annual report on Form 10-K or quarterly report on Form 10-Q in respect of any quarter in which sales of Shares were made by the Agent under this Agreement or (y) to the extent there shall be an Applicable Time on or following such filing date referred to in clause (x), prior to such Applicable Time, (each such date, a “Filing Date”), the Company will (i) affirm in writing each representation, warranty, covenant and other agreement contained in this Agreement, (ii) file a prospectus supplement to the Prospectus included as part of the Registration Statement with the Commission under the applicable paragraph of Rule 424(b) of the Securities Act, which prospectus supplement will set forth, with regard to such quarter, the number of Shares sold through the Agent under this Agreement, the Net Proceeds received by the Company and the compensation paid by the Company to the Agent with respect to sales of Shares pursuant to this Agreement and (iii) deliver such number of copies of each such prospectus supplement to the NYSE as are required by such exchange. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company hereinCompany, to and the performance by the Company of its obligations hereunder obligations, set forth in this Agreement and to the continuing satisfaction of the additional conditions specified in Section 8 Sections 4 and 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 2 contracts
Samples: Atm Equity Sales Agreement (Annaly Capital Management Inc), Atm Equity Offering Sales Agreement (Annaly Capital Management Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.:
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)NYSE, (B) the Company has instructed the Manager by delivery of a sales notice, a form of which is attached hereto as Schedule C (a “Sales Agent Notice”), by telephone (confirmed promptly by electronic mail) email notice (or as otherwise other method mutually agreed to in writing by the Company and parties) to any of the Sales Agentindividuals listed as authorized representatives of the Manager on Schedule B hereto (the “Authorized Manager Representatives”) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will Sales Notice shall designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing writing, and any other limitations (a “Placement Notice”)e.g., pricing) or instructions from the Company. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated by the Sales Notice; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone to any of the Authorized Manager Representatives (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionSales Notice. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend or withdraw the offering of the Shares; Shares, or otherwise amend the terms of a previously delivered Sales Notice and any subsequent Sales Notice or amended Sales Notice shall override any previously delivered Sales Notice; provided, however, that notwithstanding the foregoing, such suspension suspension, withdrawal or amendment shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder or under an Alternative Distribution Agreement prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed in writing by the Company and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.252% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and or the Sales Agent Manager from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company by email notice (or other method mutually agreed to in writing by the parties) following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first second business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon in writing by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, in addition to and in no way limiting the rights and obligations set forth in Section 9(a), the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)5(p) hereof), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ic) Under no circumstances shall the aggregate gross sales proceeds of Shares sold pursuant to this Agreement exceed the lesser of (i) together with all sales of Shares under this Agreement and the Alternative Distribution Agreement, the Maximum Amount and (ii) the amount available for offer and sale under the currently effective Registration Statement nor shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing. Further, under no circumstances shall the aggregate offering price of Shares sold pursuant to this Agreement and the Alternative Distribution Agreement, including any separate underwriting or similar agreement covering principal transactions described in Section 1 of this Agreement and the Alternative Distribution Agreement, exceed the Maximum Amount.
(iid) If either party If, at any time, the Company has reason to believe that the Company’s status with respect to the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied has changed with respect to the Shares, it shall promptly notify the other party and sales Manager of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied such change in the judgment of each partystatus.
(de) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon in writing by the Company and the Sales AgentManager, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent Manager except during the period (x) starting upon the Company filing its most recent Form 10-Q or Form 10-K until two business days prior to the Company’s next succeeding declaration of dividends on its common stock, (y) following two business days after such dividend declaration until the end of such fiscal quarter or February 28th for the period following the filing of the Form 10-Q for the third quarter, or (z) from March 15th (assuming the Form 10-K is filed on or before March 15th, or otherwise such later date as the Form 10-K is filed) to March 31st; provided that no such period for sales begin until the Manager is in receipt of all required deliverables as specified in Sections 5(p), 5(q), 5(r), 5(s), 5(t), 5(u), 8(f) and 8(g) and has satisfactorily completed its diligence pursuant to Section 5(v). Notwithstanding the foregoing, without the prior written consent of each of the Company and the Manager, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (Ai) there can be no assurance that the Sales Agent Manager will be successful in selling the Shares, (Bii) the Sales Agent Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (Ciii) the Sales Agent Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent Manager and the Company.
(h) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares pursuant to this Agreement or the Alternative Distribution Agreement shall only be effected by or through only one of the Managers on any single given day, but in no event by more than one, and the Company shall in no event request that Managers sell Shares on the same day, subject to the exceptions set forth in Section 5(k) hereof.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Five Oaks Investment Corp.), Equity Distribution Agreement (Five Oaks Investment Corp.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Partnership agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the CompanyPartnership, the Shares Units on the following terms.
(i) The Shares Units are to be sold on a daily basis or otherwise as shall be agreed to by the Company Partnership and the Sales Agent Manager on any day that (A) is a trading day for the NYSE New York Stock Exchange (the “NYSE”) (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company Partnership through any of the individuals identified as authorized representatives of the Partnership in a certificate to be furnished by the Partnership to the Manager, as updated from time to time (the “Authorized Partnership Representatives”) has instructed the Sales Agent individuals identified by the Manager as authorized representatives of the Manager in a certificate to be furnished by the Manager to the Partnership, as updated from time to time (“Authorized Manager Representatives”), by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company Partnership has satisfied its obligations under Section 8 6 of this Agreement. The Company Partnership will designate the maximum amount of the Shares Units to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Units designated.
(ii) Notwithstanding the foregoing, the Partnership, through any of the Authorized Partnership Representatives, may instruct the Authorized Manager Representatives by telephone (confirmed promptly by electronic mail) not to sell the Units if such sales cannot be effected at or above the price designated by the Partnership in any such instruction. In addition, the Partnership or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Units; provided, however, that such suspension or termination shall not affect or impair the Sales Agent shall have no obligation parties’ respective obligations with respect to offer or sell any Shares, and the Company acknowledges Units sold hereunder prior to the giving of such notice.
(iii) The Manager hereby covenants and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale not to make any sales of the Shares Units on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is Partnership pursuant to this Section 3(a), other than (A) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus prospectus to the NYSE in accordance with Rule 153 under of the Act Rules (such transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership and the Sales AgentManager. The Manager has no obligations under Section 3(a)(i) to effect: (A) a sale of Units on behalf of the Partnership that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act, (B) an offer or sale of Units on behalf of the Partnership that would constitute a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act, or (C) an offer or sale in which the Manager reasonably believes it would be an “underwriter” under the Act in a transaction pursuant to this Agreement that is not an At-the-Market Offering.
(iv) The compensation to the Sales AgentManager, as an agent of the CompanyPartnership, for sales of the Shares Units pursuant to this Section 3(a) shall be up to 1.252% of the gross sales price of the Shares Units sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by specified in Schedule A attached hereto. Such rate of compensation shall not apply when the Company and the Sales Agent from time to timeManager acts as principal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company Partnership for such Shares Units (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company Partnership following the close of trading on the NYSE each day in which the Shares Units are sold under this Section 4(a3(a) setting forth the amount of the Shares Units sold on such day, the aggregate gross sales proceeds, any transaction fees deducted pursuant to Section 3(a)(iv), the Net Proceeds to the Company Partnership, and the compensation payable by the Company Partnership to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares Units pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”)) at such time on the applicable Settlement Date as the Partnership and the Manager may mutually agree. On each Settlement Date, the Shares Units sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company Partnership to the Sales Agent Manager against payment of the Net Proceeds for the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares by the Company or its transfer agent Units to the Sales AgentManager’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCommon Units, in return for payments in same day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if as applicable), shall default on its obligation to deliver the Shares Units on any Settlement Date, the Company Partnership shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company Partnership and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Partnership Representatives shall be the contact persons for the Company Partnership for all matters related to the settlement of the transfer of the Shares Units through DWAC for purposes of this Section 4(a)(vi3(a)(vi). If the Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date for the Units delivered by the Partnership, the Manager will pay the Partnership interest based on the effective overnight Federal Funds rate.
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(n)), the Company Partnership shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares Units on behalf of the Company Partnership shall be subject to the continuing accuracy of the representations and warranties of the Company Partnership herein, to the performance by the Company Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(viii) The Partnership acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Units, (B) the Manager will incur no liability or obligation to the Partnership or any other person or entity if it does not sell Units for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Units in accordance with the terms of this Agreement, and (C) the Manager shall be under no obligation to purchase Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Partnership. The Partnership hereby acknowledges that the Manager may trade in the Common Units for the Manager’s own account and for the account of its clients at the same time as sales of the Units occur pursuant to this Agreement.
(i) If the Company Partnership wishes to issue and sell the Shares Units other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyPartnership, wishes to accept amended terms, the Sales Agent Manager and the Company Partnership will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Partnership or the Manager unless and until the Partnership and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any a Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number gross sales proceeds of Shares the Units sold pursuant to this Agreement exceed the number dollar amount set forth in Section 1, nor shall the price of Shares the Units so sold exceed the price parameters, if any, authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the SharesUnits, it shall promptly notify the other party and sales of the Shares Units under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent Units shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company Partnership and the Sales AgentManager, sales pursuant to this Agreement may not be requested by the Company Partnership and need not be made by the Sales Agent Manager except during the period that begins after the filing of a quarterly report on Form 10-Q or an annual report on Form 10-K as of and within the period required by the Exchange Act (each such date, a “Filing Date”) and ends, for all periods, on the earlier of (i) the date directors and officers are no longer permitted to trade pursuant to the Partnership’s policy on xxxxxxx xxxxxxx as in effect from time to time and (ii) the end of the quarter in which the applicable Filing Date occurs. Notwithstanding the foregoing, without the prior written consent of each of the Partnership and the Manager, no sales of Units shall take place, and the Partnership shall not request the sale of any Units that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company Partnership is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Kinder Morgan Energy Partners L P), Equity Distribution Agreement (Kinder Morgan Energy Partners L P)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.:
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE AMEX (other than a day on which the NYSE AMEX is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as reasonably agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the designated Shares. The gross sales of any Shares designated; provided, however, that sold under this Section 3(a) shall be the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale market price for shares of the Shares Company’s Common Stock sold by the Manager under this Section 3(a) on behalf the AMEX at the time of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”)sale.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors and notified to the Manager in writing. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy), suspend the offering of the Shares; Shares; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (Aa) by means of At-the-ordinary brokers’ transactions between members of the AMEX that qualify for delivery of a Prospectus to the AMEX in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At the Market Offerings Offerings”) and (Bb) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager. The Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(14) under the Exchange Act or a “distribution” within the meaning of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is not an At the Market Offering, the Company will provide to the Manager, at the Manager’s request and upon reasonable advance notice to the Company, on or prior to the Settlement Date, the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 5 hereof that the Company would be required to provide to the Manager in connection with a sale of Shares pursuant to a Terms Agreement, each dated the Settlement Date, and such other documents and information as the Manager shall reasonably request.
(iv) The compensation to the Sales AgentManager for sales of Shares, as an agent of the Company, for sales of the Shares shall be up to 1.253.00% of the gross sales price of the Shares sold pursuant to this Section 4(a) or 3(a), and such lower amount rate of compensation shall not apply when the Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeprincipal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE AMEX each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (Aa) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bb) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date for Shares delivered by the Company, the Manager will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi)effective overnight Federal Funds rate.
(vii) At each Time of Sale, Settlement Date and Representation Filing Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. The Company covenants and agrees with the Manager that (a) with respect to each of the Company’s first three fiscal quarters, on or prior to the second business day after any date on which the Company shall be obligated to file a quarterly report on Form 10-Q in respect of such quarter and (b) with respect to the Company’s fourth fiscal quarter for year 2003 and for each year thereafter, on or prior to the thirty-seventh day after the end of such quarter in which sales of Shares were made by the Manager pursuant to this Section 3(a) (each such date, a “Filing Date”), the Company will file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b), which prospectus supplement will set forth, with regard to such quarter, the number of Shares sold through the Manager as agent pursuant to this Section 3(a) in At the Market Offerings, the Net Proceeds to the Company and the compensation paid by the Company with respect to such sales of Shares pursuant to this Section 3(a) and deliver such number of copies of each such prospectus supplement to the AMEX as are required by such Exchange. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any a Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement and any Terms Agreement exceed the number set forth in Section 1 or the number of Shares authorized from time to time to be issued and sold shares of Common Stock available for issuance under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Manager shall calculate on a weekly basis the average daily trading volume (as defined by Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement orand, if applicable, a Terms Agreement.
(e) Any offer, solicitation or which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares shall be effected by or through only one the Manager. The commitment of the Agents on any single trading day.
(f) Subject Manager to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales purchase Shares pursuant to this any Terms Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could shall be deemed to be, in possession have been made on the basis of material non-public information.
(g) Notwithstanding any other provision the representations and warranties of this Agreementthe Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company shall not offerfor such Shares, sell or deliverany provisions relating to rights of, or request and default by, underwriters acting together with the offer or saleManager in the reoffering of the Shares, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues and date (each such time and date being referred to herein as a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings AnnouncementTime of Delivery”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as place of delivery of and payment for the same fiscal period or periodssuch Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data accountants’ letters and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter certificates pursuant to this Section 4(g) shall not relieve the Company from any 5 of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person information or entity if it does not sell Shares for any reason other than a failure documents required by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the CompanyManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Impac Mortgage Holdings Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.:
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount number of the Shares to be sold by the Sales Agent Manager daily as reasonably agreed to by the Sales Agent Manager and in any event not in excess of the amount number of shares of Common Stock available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the designated Shares. The gross sales price of any Shares designated; sold under this Section 3(a) shall be the market price for shares of the Company’s Common Stock on the NYSE at the time of such sales multiplied by the number of Shares sold by the Manager under this Section 3(a).
(ii) Notwithstanding the foregoing, the Company may instruct the Manager by telephone (confirmed promptly by telecopy) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors and notified to the Manager in writing. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the Sales Agent shall have no obligation parties’ respective obligations with respect to offer or sell any Shares, and the Company acknowledges Shares sold hereunder prior to the giving of such notice.
(iii) The Manager hereby covenants and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale not to make any sales of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is Company, pursuant to this Section 3(a), other than (a) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (Bb) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager. The Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(14) under the Exchange Act or a “distribution” within the meaning of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is not an At the Market Offering, the Company will provide to the Manager, at the Manager’s request and upon reasonable advance notice to the Company, on or prior to the Settlement Date, the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 5 hereof that the Company would be required to provide to the Manager in connection with a sale of Shares pursuant to a Terms Agreement, each dated the Settlement Date, and such other documents and information as the Manager shall reasonably request.
(iv) The compensation to the Sales AgentManager for sales of Shares, as an agent of the Company, for sales of the Shares shall be up to 1.253.00% of the gross sales price of the Shares sold pursuant to this Section 4(a) or 3(a), and such lower amount rate of compensation shall not apply when the Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeprincipal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount number of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (Aa) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bb) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date for Shares delivered by the Company, the Manager will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi)effective overnight Federal Funds rate.
(vii) At each Time of Sale, Settlement Date and Representation Filing Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. The Company covenants and agrees with the Manager that (a) with respect to each of the Company’s first three fiscal quarters, on or prior to the second business day after any date on which the Company shall be obligated to file a quarterly report on Form 10-Q in respect of such quarter and (b) with respect to the Company’s fourth fiscal quarter for year 2004 and for each year thereafter, on or prior to the thirty-seventh day after the end of such quarter in which sales of Shares were made by the Manager pursuant to this Section 3(a) (each such date, a “Filing Date”), the Company will file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b), which prospectus supplement will set forth, with regard to such quarter, the number of Shares sold through the Manager as agent pursuant to this Section 3(a) in At the Market Offerings, the Net Proceeds to the Company and the compensation paid by the Company with respect to such sales of Shares pursuant to this Section 3(a) and deliver such number of copies of each such prospectus supplement to the NYSE as are required by such exchange. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any a Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement and any Terms Agreement exceed the number set forth in Section 1 or the number of Shares authorized from time to time to be issued and sold shares of Common Stock available for issuance under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Manager shall calculate on a weekly basis the average daily trading volume (as defined by Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement orand, if applicable, a Terms Agreement.
(e) Any offer, solicitation or which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares shall be effected by or through only one the Manager. The commitment of the Agents on any single trading day.
(f) Subject Manager to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales purchase Shares pursuant to this any Terms Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could shall be deemed to be, in possession have been made on the basis of material non-public information.
(g) Notwithstanding any other provision the representations and warranties of this Agreementthe Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company shall not offerfor such Shares, sell or deliverany provisions relating to rights of, or request and default by, underwriters acting together with the offer or saleManager in the reoffering of the Shares, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues and date (each such time and date being referred to herein as a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings AnnouncementTime of Delivery”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as place of delivery of and payment for the same fiscal period or periodssuch Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data accountants’ letters and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter certificates pursuant to this Section 4(g) shall not relieve the Company from any 5 of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person information or entity if it does not sell Shares for any reason other than a failure documents required by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the CompanyManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Impac Mortgage Holdings Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell Securities from time to time through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares Securities on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by Each time that the Company and the Sales Agent wishes to sell Securities on any day that (A) is a trading day for the NYSE Nasdaq Global Select Market (a “Trading Day”) (other than a day Trading Day on which the NYSE Nasdaq Global Select Market is scheduled to close prior to its regular weekday closing time) pursuant to this Agreement (each, a “Placement”), (B) the Company has instructed will instruct the Sales Agent by telephone of the parameters in accordance with which it desires Securities to be sold, which shall at a minimum include the number of Securities to be offered, the time period during which sales are requested to be made, the minimum price below which sales may not be made and any limitation on the number of Securities that may be sold in any one day (confirmed promptly by electronic maila “Placement Notice”). The Sales Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same business day (or as otherwise agreed defined below) on which such Placement Notice is delivered to by the Company and the Sales Agent) from any , issue to the Company a notice by email addressed to all of the individuals listed as authorized representatives of the Company on Schedule B A hereto (the “Authorized Company Representatives”) to make such sales confirming all of the parameters of the Placement. The Placement Notice shall be effective upon receipt by any of the Authorized Representatives of the email notice from the Sales Agent, unless and until (Ci) the entire amount of the Securities covered by the Placement Notice have been sold, (ii) in accordance with Section 2(a)(ii) hereof, the Company or the Sales Agent suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) this Agreement has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance been terminated under the currently effective Registration Statement relating to the sale provisions of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)9. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Securities designated in the Placement Notice; provided, however, that the Sales Agent shall have no obligation to offer or sell any SharesSecurities, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, obligation in the event an offer or sale of the Shares Securities on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act 1934 Act, or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange 1934 Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is other than (A) by means of ordinary brokers’ transactions between members of the NYSE Nasdaq Global Select Market that qualify for delivery of a Prospectus to the NYSE Nasdaq Global Select Market in accordance with Rule 153 under the 1933 Act or (such B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the transactions described in (A) and (B) are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agentmail from such party), suspend the offering of the Shares; Securities pursuant to this Agreement or suspend or terminate a previously issued Placement Notice; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares Securities sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares Securities on behalf of the Company, pursuant to this Section 4(a2(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares Securities on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The gross sales price of any Securities sold pursuant to this Agreement by the Sales Agent, as an agent of the Company, shall be the market price prevailing at the time of sale for Securities sold by the Sales Agent on the Nasdaq Global Select Market or otherwise, at prices related to prevailing market prices or, subject to specific instructions of the Company, at negotiated prices. The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares Securities shall be at a mutually agreed rate up to 1.252.0% of the gross sales price of the Shares Securities sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and 2(a). The foregoing rate of compensation shall not apply when the Sales Agent from acts as principal, in which case the Company may sell Securities to the Sales Agent as principal at a price agreed upon at the relevant applicable time pursuant to timea separate agreement (each, a “Terms Agreement”) relating to such sale. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares Securities (the “Net Proceeds”). The Sales Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be made.
(v) The Sales Agent shall provide written confirmation to the Company as soon as practicable following the close of trading on the NYSE Nasdaq Global Select Market each day in on which the Shares Securities are sold under this Section 4(a2(a) setting forth the aggregate amount of the Shares Securities sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares Securities pursuant to this Section 4(a2(a) will occur on the first business day second Trading Day following the date on which such sales are made or such other made, unless another date as may shall be agreed upon by the Company and the Sales Agent (provided that, if such Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day) (each such date, a “Settlement Date”). As used herein, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Securities sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company (through its transfer agent) to the Sales Agent against payment of the Net Proceeds for the sale of such SharesSecurities. Settlement for all such Shares Securities shall be effected by free delivery of electronically transferring the Shares Securities by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company DTC through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties heretoCompany and the Sales Agent, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, Company (or its transfer agent (if applicable), agent) shall default on its obligation to deliver the Shares Securities on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Sales Agent in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares Securities through DWAC for purposes of this Section 4(a)(vi2(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares Securities on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company hereinWhiteHorse Entities, to the performance by the Company WhiteHorse Entities of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 3 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares Securities other than as set forth in Section 4(a2(a) of this Agreement (each, a “Placement”)Agreement, it will may elect, in its sole discretion, to notify the Sales Agent of the proposed terms of such Placementsale. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. For avoidance of doubt, nothing contained in this Agreement shall be construed to require the Company to engage the Sales Agent in connection with the offer and sale of any of its securities, including shares of the Common Stock, whether in connection with an underwritten offering or otherwise.
(ic) In the event the Company engages the Sales Agent for a sale of Securities that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the 1934 Act, or a “distribution,” within the meaning of Rule 100 of Regulation M under the 1934 Act, the Company and the Sales Agent will agree to compensation that is customary for the Sales Agent with respect to such transactions.
(d) Under no circumstances shall the Company cause or request the offer or sale of any Securities if, after giving effect to the sale of such Securities, the aggregate gross sales proceeds or the aggregate number of Shares the Securities sold pursuant to this Agreement would exceed the number of Shares authorized from time to time to be issued amount available for offer and sold sale under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(iie) If either any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange 1934 Act are not satisfied with respect to the SharesSecurities, it shall promptly notify the other party parties and sales of the Shares Securities under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Sales Agent (which such request may be by electronic mail), the Sales Agent shall promptly calculate and provide in writing to the Company a report setting forth, for the prior week, the average daily trading volume (as defined in Rule 100 of Regulation M under the 1000 Xxx) of the Common Stock.
(df) Each sale of the Shares Securities to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement. The commitment of the Sales Agent to purchase the Securities pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the parties herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Securities to be purchased by the Sales Agent pursuant thereto, the price to be paid to the Company for such Securities, any provisions relating to rights of, and default by, underwriters acting together with the Sales Agent in the reoffering of the Securities, any provisions relating to the granting of an option to purchase additional Securities for the purpose of covering over-allotments, and the time and date (each such time and date being referred to herein as a “Date of Delivery”) and place of delivery of and payment for such Securities. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 5 hereof and any other information or documents required by the Sales Agent.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(fg) Subject to the such further limitations on offers and sales of Securities or delivery of instructions to offer and sell Securities as are set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, Agent offers and sales of Securities pursuant to this Agreement may shall not be requested by the Company and need not be made by the Sales Agent at any time when or during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the SharesSecurities, (B) the Sales Agent will not incur no liability or obligation to the Company or any other person or entity if it such Sales Agent does not sell Shares Securities for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Securities in accordance with the terms of this Agreement, Agreement and (C) the Sales Agent shall not be under no any obligation to purchase Shares Securities on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent and the Company. For purposes of clarification, the Sales Agent shall only be deemed to be acting as a sales agent under this Agreement during the period beginning with the delivery of a Placement Notice from the Company to the Sales Agent and ending upon the suspension or termination of such Placement Notice.
(i) The Company agrees that, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Securities or sales of Common Stock pursuant to any At the Market Offering (as defined herein and within the meaning of Rule 415(a)(4) under the 1000 Xxx) shall only be effected by or through the Sales Agent. Notwithstanding the foregoing or anything to the contrary in this Agreement, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Securities or sales of Common Stock that do not constitute an At the Market Offering (as defined herein and within the meaning of Rule 415(a)(4) under the 1933 Act), including any underwritten offering or private placement transaction exempt from the requirements of the 1933 Act, may be effected by the Company by or through any person or entity in the Company’s sole discretion.
Appears in 1 contract
Samples: Equity Distribution Agreement (WhiteHorse Finance, Inc.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Trust agrees to issue and sell through the Sales Agent, as exclusive sales agentagent for the sale of Common Shares pursuant to this Agreement or an arrangement similar to that contemplated by this Agreement, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the CompanyTrust, on a reasonable efforts basis, up to the Maximum Amount of Common Shares during the term of this Agreement on the terms set forth herein; provided, however, the Trust and the Agent shall suspend the sale of Common Shares if the per share price for the Common Shares is less than the Minimum Price (as defined below). The Trust shall calculate the Current Net Asset Value (as such term is used in Section 23(b) of the 1940 Act) per Common Share at the close of business on each day and xxxxx xxtify the Agent of the result of such calculation by 5:30 p.m. on each day. "Minimum Price" means a price equal to (1) the Current Net Asset Value per Common Share as determined by the Trust on the following terms.
preceding business day plus (i2) the per Common Share amount of any commission to be paid to the Agent hereunder. The Shares Common Shares, up to the Maximum Amount, are to be sold on a daily basis or otherwise such days as shall be agreed to by the Company Trust and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares shall be up to 1.25% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the entire Maximum Amount. The Agent shall sell the Common Shares only by means of ordinary trading transactions on the NYSE. The Agent shall not solicit or arrange for the solicitation of customers' orders in anticipation of or in connection with such transactions. The Agent shall calculate the ADTV (as defined in Regulation M) of the Common Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placementweekly basis. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule rule 101(c)(1) of Regulation M under the Exchange Act M, are not satisfied with respect to the Sharessatisfied, it shall promptly notify the other party and sales of the Common Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
. In addition, the Trust or the Agent may, upon notice to the other party hereto by telephone (d) Each confirmed promptly by telecopy), suspend the offering of Common Shares at any time and each party agrees to promptly suspend the offering of Common Shares upon such notice; provided, however, that such suspension or termination shall not affect or impair the parties' respective obligations with respect to Common Shares sold hereunder prior to the giving of such notice. In connection with the sale of Common Shares under this Agreement, the Agent is not authorized by the Trust to give any information or to make any representations in connection with this Agreement other than those contained in the Registration Statement and the Prospectus, and agrees not to give any unauthorized information or to make any unauthorized representations. Except as specifically provided in this Agreement, the Agent is not authorized to act as an agent for the Trust, and agrees not to act or to purport to act as an agent for the Trust. The Trust and the Agent shall agree upon the number of Common Shares to or through be sold on any business day. The compensation to the Sales Agent for sales of Common Shares shall be at a fixed commission rate of o% of the gross sales price per share. The Agent shall be made provide written confirmation to the Trust following the close of business on any day in accordance with the terms of which Common Shares are sold under this Agreement orsetting forth the number of Common Shares sold, if applicable, a Terms Agreement.
(e) Any offer, solicitation or the gross proceeds from the sale of such shares, the highest and lowest executed sales price at which such shares were sold, the net proceeds to the Trust and the compensation payable by the Trust to the Agent with respect to such sales. Settlement for sales of Common Shares will occur on the third business day following the date on which such sales are made (each a "Closing Date"). The amount of proceeds for such sales to be delivered to the Trust against the receipt of the Common Shares sold shall be equal to the aggregate sales prices at which such Common Shares were sold, net of the Agent's compensation for such sales and after deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales. Settlement for Common Shares shall be effected by or through only one free delivery of the Agents on any single trading day.
(f) Subject shares to the limitations set forth herein and as may be mutually agreed upon Agent's account at The Depository Trust Company in return for payments in same day funds delivered to the account designated by the Company and Trust. On each Closing Date, the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could Trust shall be deemed to behave affirmed each representation, warranty, covenant and other agreement contained in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement. On the first day of each month, the Company Trust shall not offeraffirm in writing each representation, sell or deliverwarranty, or request the offer or sale, of any Shares pursuant to covenant and other agreement contained in this Agreement at any time during the period from Agreement. The Trust covenants and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection agrees with the Company filing a Quarterly Report Agent that on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver prior to the Sales Agent (second business day after each day on which sales of Common Shares occur, the Trust will file a prospectus supplement under the applicable paragraph of Rule 497 of the Rules and Regulations, which prospectus supplement will set forth, with a copy regard to counsel for such day, the Sales number of Common Shares sold through the Agent) a Current Report on Form 8-K that includes substantially , the same financial highest and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (eachlowest executed sales price at which Common Shares were sold, an “Earnings 8-K”), in form and substance reasonably satisfactory the net proceeds to the Sales Trust and the compensation payable by the Trust to the Agent, and, prior to its filing, obtain the written consent . Any obligation of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such the Common Shares shall be subject to the continuing accuracy of the representations and warranties of the Trust herein, to the performance by the Trust of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in accordance with the terms Section 5 of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Samples: Sales Agency Agreement (Pilgrim America Prime Rate Trust)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)NYSE, (B) the Company has instructed the Manager by delivery of a sales notice, a form of which is attached hereto as Schedule C (a “Sales Agent Notice”), by telephone (confirmed promptly by electronic mail) email notice (or as otherwise other method mutually agreed to in writing by the Company and parties) to any of the Sales Agentindividuals listed as authorized representatives of the Manager on Schedule B hereto (the “Authorized Manager Representatives”) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will Sales Notice shall designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s 's board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing writing, and any other limitations (a “Placement Notice”)e.g., pricing) or instructions from the Company. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated by the Sales Notice; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone to any of the Authorized Manager Representatives (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionSales Notice. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend or withdraw the offering of the Shares; Shares, or otherwise amend the terms of a previously delivered Sales Notice and any subsequent Sales Notice or amended Sales Notice shall override any previously delivered Sales Notice; provided, however, that notwithstanding the foregoing, such suspension suspension, withdrawal or amendment shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed in writing by the Company and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.252% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and or the Sales Agent Manager from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company by email notice (or other method mutually agreed to in writing by the parties) following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales Agent’s Manager's designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon in writing by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, in addition to and in no way limiting the rights and obligations set forth in Section 9(a), the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)5(p) hereof), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ic) Under no circumstances shall the aggregate gross sales proceeds of Shares sold pursuant to this Agreement exceed the lesser of (i) the amount set forth in Section 1 and (ii) the amount available for offer and sale under the currently effective Registration Statement nor shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing.
(iid) If either party If, at any time, the Company has reason to believe that the Company’s status with respect to the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied has changed with respect to the Shares, it shall promptly notify the other party and sales Manager of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied such change in the judgment of each partystatus.
(de) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon in writing by the Company and the Sales AgentManager, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent Manager except during the period (x) starting upon the Company filing its most recent Form 10-Q or Form 10-K until two business days prior to the Company’s next succeeding declaration of dividends on its common stock, (y) following two business days after such dividend declaration until the end of such fiscal quarter or February 28th for the period following the filing of the Form 10-Q for the third quarter, or (z) from March 15 (assuming the Form 10-K is filed on or before March 15th, or otherwise such later date as the Form 10-K is filed) to March 31; provided that no such period for sales begin until the Manager is in receipt of all required deliverables as specified in Sections 5(p), 5(q), 5(r), 5(s), 5(t), 5(u), 8(f) and 8(g) and has satisfactorily completed its diligence pursuant to Section 5(v). Notwithstanding the foregoing, without the prior written consent of each of the Company and the Manager, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (Ai) there can be no assurance that the Sales Agent Manager will be successful in selling the Shares, (Bii) the Sales Agent Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (Ciii) the Sales Agent Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent Manager and the Company.
Appears in 1 contract
Samples: Distribution Agency Agreement (Five Oaks Investment Corp.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, as non-exclusive sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as non-exclusive sales agent for the Company, on a best efforts basis, up to the Maximum Amount of Shares on the following terms.
(i) terms set forth herein. The Shares Shares, up to the Maximum Amount, are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as reasonably agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable best efforts to offer and sell all of the designated Shares designated; provided, however, that up to the Sales Agent shall have no obligation to offer or sell any Shares, and Maximum Amount. Notwithstanding the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of foregoing the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction; furthermore, the Company shall not authorize the issuance and sale of, and the Agent shall not be obligated to use its best efforts to sell, any Shares at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Agent in writing. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy), suspend the offering of the Shares; Shares; provided, however, that such suspension or termination shall not affect or impair the parties’ ' respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) The Sales Agent hereby covenants and agrees of Regulation M under the Exchange Act, are not satisfied with respect to make any sales the Shares, the amount of the Shares that may be sold on behalf of the Company, any day pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings Agreement and (B) such any other sales agency agreement shall not exceed 10% of the average daily trading volume of the Shares on behalf for the sixty days prior to such day (provided, that any Shares purchased by the Agent as principal during such period shall not be included in the calculation of the Company in its capacity as agent of the Company as shall be trading volume). Unless otherwise agreed by the Company and the Sales Agent.
, the Agent shall sell the Shares only by means of ordinary brokers' transactions on the New York Stock Exchange (iv) the "NYSE"). Unless otherwise agreed to by the Company and the Agent, the Agent shall not solicit or arrange for the solicitation of customer's orders in anticipation of or in connection with such transactions, nor shall it sell short as principal Shares of the Company, except in connection with customary market making activities in the Company's outstanding securities. The Agent shall not engage in any special selling efforts or selling methods relating to the Shares within the meaning of Rule 100 of Regulation M under the Exchange Act. The Agent shall calculate on a weekly basis the average daily trading volume of the Shares. The compensation to the Sales Agent, as an agent of the Company, Agent for sales of the Shares shall be up to 1.25% ____ of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by sold, in the Company and the Sales Agent from time to timeform of a commission. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “"Net Proceeds”").
(v) . The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) Agreement setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) . Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “"Settlement Date”"). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.the
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell sell, and the Selling Stockholder agrees to sell, through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the CompanyCompany and the Selling Stockholder, the Shares on the following terms.:
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company Company, in the case of Primary Shares, the Selling Stockholder, in the case of Secondary Shares, and the Sales Agent Manager, but in any event the Shares are to be sold only in trades on the NYSE, on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate in writing the maximum amount and minimum price of Primary Shares and the Selling Stockholder will designate in writing the maximum amount and minimum price of Secondary Shares to be sold by the Sales Agent Manager daily as reasonably agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the designated Shares. The gross sales of any Shares designated; sold under this Section 3(a) shall be the market price for shares of the Company's Common Stock sold by the Manager under this Section 3(a) on the NYSE at the time of such sale.
(ii) Notwithstanding the foregoing, the Company may instruct the Manager in writing not to sell Primary Shares and the Selling Stockholder may instruct the Manager in writing not to sell Secondary Shares if such sales cannot be effected at or above the price designated by the Company or the Selling Stockholder, as the case may be, in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Selling Stockholder shall not authorize the sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company's Board of Directors in the case of Primary Shares and the Selling Stockholder's Board of Directors in the case of Secondary Shares and notified to the Manager in writing. In addition, the Company, in the case of the Primary Shares, the Selling Stockholder in the case of the Secondary Shares or the Manager may, upon notice to the other parties hereto by telephone (confirmed promptly by telecopy), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the Sales Agent shall have no obligation parties' respective obligations with respect to offer or sell any Shares, and the Company acknowledges Shares sold hereunder prior to the giving of such notice.
(iii) The Manager hereby covenants and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale not to make any sales of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is Selling Stockholder, pursuant to this Section 3(a), other than (a) by means of ordinary brokers’ ' transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-"At the Market Offerings”).
(ii") Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (Bb) such other sales of the Shares on behalf of the Company or the Selling Stockholder in its capacity as agent of the Company and the Selling Stockholder as shall be agreed by the Company in the case of Primary Shares, the Selling Stockholder in the case of Secondary Shares, and the Sales AgentManager. The Company and the Selling Stockholder each acknowledges and agrees that in the event a sale of Shares on behalf of the Company or the Selling Stockholder would constitute the sale of a "block" under Rule 10b-18(a)(5) under the Exchange Act or a "distribution" within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed an "underwriter" under the Act in a transaction that is not an At the Market Offering, the Company and the Selling Stockholder, will provide to the Manager, at the Manager's request and upon reasonable advance notice to the Company and the Selling Stockholder, on or prior to the Settlement Date, the opinions of counsel, accountants' letters and officers' certificates pursuant to Section 5 hereof that the Company and/or the Selling Stockholder would be required to provide to the Manager in connection with a sale of Shares pursuant to a Terms Agreement, each dated the Settlement Date (as defined below), and such other documents and information as the Manager shall reasonably request.
(iv) The compensation to the Sales AgentManager for sales of Shares, as an agent of the CompanyCompany or the Selling Stockholder, for sales of the Shares shall be up to 1.252.0% of the gross sales price of the Shares sold pursuant to this Section 4(a) or 3(a), and such lower amount rate of compensation shall not apply when the Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeprincipal. The remaining proceedsproceeds with respect to Primary Shares sold, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company and the remaining proceeds with respect to Secondary Shares sold, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such Shares sales, shall constitute the net proceeds to the Selling Stockholder (the “"Net Proceeds”").
(v) The Sales Agent Manager shall provide written confirmation to the Company Company, in the case of Primary Shares, and the Selling Stockholder in the case of Secondary Shares, following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company or the Selling Stockholder, and the compensation payable by the Company or the Selling Stockholder to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “"Settlement Date”"). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company Company, in the case of Primary Shares, and delivered by the Selling Stockholder, in the case of Secondary Shares, to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the Manager's account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company, in the case of Primary Shares, and the Selling Stockholder, in the case of Secondary Shares. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver Primary Shares on any Settlement Date or the Selling Stockholder shall default on its obligation to deliver Secondary Shares on any Settlement Date, the Company, in the case of a default in the delivery of Primary Shares, and the Company and the Selling Stockholder jointly and severally, in the case of a default in the delivery of Secondary Shares, shall (Aa) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or the Selling Stockholder as the case may be and (Bb) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date for Primary Shares delivered by the Company or Secondary Shares delivered by the Selling Stockholder, the Manager will pay the Company in the case of a breach in the payment of proceeds for all matters related to Primary Shares or the settlement Selling Stockholder in the case of a breach in the transfer payment of proceeds for Secondary Shares, interest based on the Shares through DWAC for purposes of this Section 4(a)(vi)effective overnight Federal Funds rate.
(vii) At each Time of Sale, Settlement Date and Representation Filing Date (as defined in Section 5(q)below), each of the Company and the Selling Stockholder shall be deemed to have affirmed each of their respective its representations and warranties contained in this Agreement. The Company covenants and agrees with the Manager that (a) with respect to each of the Company's first three fiscal quarters, on or prior to the date on which the Company shall be obligated to file a quarterly report on Form 10-Q in respect of such quarter and (b) with respect to the Company's fourth fiscal quarter for year 2004 and for each year thereafter, on or prior to the thirty-fifth day after the end of such quarter in which sales of Shares were made by the Manager pursuant to this Section 3(a) (each such date, a "Filing Date"), the Company will file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b), which prospectus supplement will set forth, with regard to such quarter, the number of Shares sold through the Manager as agent pursuant to this Section 3(a) in At the Market Offerings, the Net Proceeds to the Company and the Selling Stockholder and the compensation paid by the Company and the Selling Stockholder with respect to such sales of Shares pursuant to this Section 3(a) and deliver such number of copies of each such prospectus supplement to the NYSE as are required by such Exchange. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company or the Selling Stockholder shall be subject to the continuing accuracy of the representations and warranties of the Company and the Selling Stockholder herein, to the performance by the Company and the Selling Stockholder of its their obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If either of the Company or the Selling Stockholder wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 4(a3(a) of this Agreement (each, a “"Placement”"), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyCompany with respect to Primary Shares or the Selling Stockholder with respect to Secondary Shares, wishes to accept amended terms, the Sales Agent Manager, the Company and the Company Selling Stockholder will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Company, the Selling Stockholder or the Manager unless and until the Company, the Selling Stockholder and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any a Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement and any Terms Agreement exceed the number set forth in Section 1 or the number of Shares authorized from time to time to be issued and sold shares of Common Stock available for issuance under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(ii) If either any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Manager shall calculate on a weekly basis the ADTV (as defined by Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, and a Terms Agreement.
(e) Any offer, solicitation or which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase Shares pursuant to any Terms Agreement shall be effected by or through only one deemed to have been made on the basis of the Agents on any single trading day.
(f) Subject to the limitations set forth herein representations and as may be mutually agreed upon by warranties of the Company and the Sales Agent, sales pursuant Selling Stockholder herein contained and shall be subject to this the terms and conditions herein set forth. Each Terms Agreement may not shall specify the number of Shares to be requested purchased by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this AgreementManager pursuant thereto, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant price to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation paid to the Company or the Selling Stockholder for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a "Time of Delivery") and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants' letters and officers' certificates pursuant to Section 5 of this Agreement and any other person information or entity if it does not sell Shares for any reason other than a failure documents required by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the CompanyManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (American Financial Capital Trust Iv)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent Manager by telephone or electronic mail (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales (each, a “placement instruction”) and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate in a placement instruction any minimum price below which sales of Shares may not be made and the maximum amount number of the Shares to be sold by the Sales Agent Manager on a daily basis or otherwise as shall be agreed to by the Sales Agent Company and Manager and in any event not in excess of the amount of Shares available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated on any day; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”). A placement instruction shall be effective immediately upon receipt by the Manager unless and until (i) the Manager declines in writing to accept the terms contained therein for any reason, in its sole discretion, within two business days (as defined below) of receipt, (ii) the entire amount of the Shares thereunder has been sold, (iii) the Company, in its sole discretion, suspends, terminates or substitutes the placement instruction or (iv) this Agreement has been terminated.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone or electronic mail (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone or electronic mail (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Shares; provided, however, that (i) such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such noticenotice and (ii) the offering of the Shares shall recommence upon the termination of such suspension (a “Suspension”).
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.253.0% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first business day second Trading Day following the date on which such sales are made or (provided that, if such other second Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day), unless another date as may shall be agreed upon by the Company and the Sales Agent Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(q)), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement would exceed the number lesser of Shares (A) the amount set forth in Section 1, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and notified to the Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(dc) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(fd) Subject to the such further limitations on offers and sales of Shares or delivery of instructions to offer and sell Shares as are set forth herein and as may be mutually agreed upon by the Company and the Sales AgentManager, offers and sales of Shares pursuant to this Agreement may shall not be requested by the Company and need not be made by the Sales Agent Manager at any time when or during any period in which the Company is or could be deemed to be, be in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(he) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager will be successful in selling the Shares, (B) the Sales Agent Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent Manager and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Partnership agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the CompanyPartnership, the Shares Units on the following terms.
(i) The Shares Units are to be sold on a daily basis or otherwise as shall be agreed to by the Company Partnership and the Sales Agent Manager on any day that (A) is a trading day for the NYSE New York Stock Exchange (the “NYSE”) (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company Partnership through any of the individuals identified as authorized representatives of the Partnership in a certificate to be furnished by the Partnership to the Manager, as updated from time to time (the "Authorized Partnership Representatives") has instructed the Sales Agent individuals identified by the Manager as authorized representatives of the Manager in a certificate to be furnished by the Manager to the Partnership, as updated from time to time (“Authorized Manager Representatives”), by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company Partnership has satisfied its obligations under Section 8 6 of this Agreement. The Company Partnership will designate the maximum amount of the Shares Units to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Units designated.
(ii) Notwithstanding the foregoing, the Partnership, through any of the Authorized Partnership Representatives, may instruct the Authorized Manager Representatives by telephone (confirmed promptly by electronic mail) not to sell the Units if such sales cannot be effected at or above the price designated by the Partnership in any such instruction. In addition, the Partnership or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Units; provided, however, that such suspension or termination shall not affect or impair the Sales Agent shall have no obligation parties’ respective obligations with respect to offer or sell any Shares, and the Company acknowledges Units sold hereunder prior to the giving of such notice.
(iii) The Manager hereby covenants and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale not to make any sales of the Shares Units on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is Partnership pursuant to this Section 3(a), other than (A) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus prospectus to the NYSE in accordance with Rule 153 under of the Act Rules (such transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership and the Sales AgentManager. The Manager has no obligations under Section 3(a)(i) to effect: (A) a sale of Units on behalf of the Partnership that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act, (B) an offer or sale of Units on behalf of the Partnership that would constitute a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act, or (C) an offer or sale in which the Manager reasonably believes it would be an “underwriter” under the Act in a transaction pursuant to this Agreement that is not an At-the-Market Offering.
(iv) The compensation to the Sales AgentManager, as an agent of the CompanyPartnership, for sales of the Shares Units pursuant to this Section 3(a) shall be up to 1.252% of the gross sales price of the Shares Units sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by specified in Schedule A attached hereto. Such rate of compensation shall not apply when the Company and the Sales Agent from time to timeManager acts as principal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company Partnership for such Shares Units (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company Partnership following the close of trading on the NYSE each day in which the Shares Units are sold under this Section 4(a3(a) setting forth the amount of the Shares Units sold on such day, the aggregate gross sales proceeds, any transaction fees deducted pursuant to Section 3(a)(iv), the Net Proceeds to the Company Partnership, and the compensation payable by the Company Partnership to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares Units pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”)) at such time on the applicable Settlement Date as the Partnership and the Manager may mutually agree. On each Settlement Date, the Shares Units sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company Partnership to the Sales Agent Manager against payment of the Net Proceeds for the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares by the Company or its transfer agent Units to the Sales AgentManager’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCommon Units, in return for payments in same day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if as applicable), shall default on its obligation to deliver the Shares Units on any Settlement Date, the Company Partnership shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company Partnership and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Partnership Representatives shall be the contact persons for the Company Partnership for all matters related to the settlement of the transfer of the Shares Units through DWAC for purposes of this Section 4(a)(vi3(a)(vi). If the Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date for the Units delivered by the Partnership, the Manager will pay the Partnership interest based on the effective overnight Federal Funds rate.
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(n)), the Company Partnership shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares Units on behalf of the Company Partnership shall be subject to the continuing accuracy of the representations and warranties of the Company Partnership herein, to the performance by the Company Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(viii) The Partnership acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Units, (B) the Manager will incur no liability or obligation to the Partnership or any other person or entity if it does not sell Units for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Units in accordance with the terms of this Agreement, and (C) the Manager shall be under no obligation to purchase Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Partnership. The Partnership hereby acknowledges that the Manager may trade in the Common Units for the Manager’s own account and for the account of its clients at the same time as sales of the Units occur pursuant to this Agreement.
(i) If the Company Partnership wishes to issue and sell the Shares Units other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyPartnership, wishes to accept amended terms, the Sales Agent Manager and the Company Partnership will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions The terms set forth in Rule 101(c)(1) a Terms Agreement will not be binding on the Partnership or the Manager unless and until the Partnership and the Manager have each executed such Terms Agreement accepting all of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.Terms
Appears in 1 contract
Samples: Equity Distribution Agreement (Kinder Morgan Energy Partners L P)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on a best efforts basis, shares of the Shares Common Stock during the term of this Agreement on the following terms.
(i) terms set forth herein. The Shares are to Common Stock will be sold on a daily basis or otherwise from time to time as shall be agreed described in the Registration Statement and Prospectus, in amounts and, subject to price limitations, at prices as directed by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”)Manager.
(iib) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the The Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic telecopy or e-mail) (or as otherwise agreed to by the Company and the Sales Agent), at any time and from time to time suspend the offering of the Shares; Common Stock; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Common Stock sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(ivc) The compensation to the Sales Agent, as an agent of the Company, Manager for sales of the Shares Common Stock sold under this Agreement shall be up to 1.25at a fixed commission rate of 2.0% of the gross sales price per share of the Shares any Common Stock sold pursuant to under this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, sale shall constitute the net proceeds to the Company for such Shares Common Stock (the “Net Proceeds”).
(vd) The Company shall open and/or maintain a trading account (the “Trading Account”) at a clearing agent designated by the Sales Agent Manager to facilitate the transactions contemplated by this Agreement. The Net Proceeds from the sale of the Common Stock shall provide written confirmation to be available in the Company following the close of trading Trading Account on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first third business day following the date on which such sales are made (or such other date day as may be agreed by is industry practice for regular-way trading) following each sale of the Company and the Sales Agent Common Stock (each such dateeach, a “Settlement Date”). On The Company shall effect the delivery of the applicable number of shares of Common Stock to an account designated by the Sales Manager at The Depository Trust Company on or before the Settlement Date of each sale hereunder. The Sales Manager’s compensation shall be withheld from the sales proceeds on each Settlement Date and shall be paid to the Sales Manager.
(e) At each Settlement Date, the Shares sold through Company and the Manager shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales Agent for settlement on such date Manager under this Agreement shall be issued subject to the continuing accuracy of the representations and delivered warranties of the Company and Manager herein, to the performance by the Company and Manager of their obligations hereunder and to the Sales Agent against payment continuing satisfaction of the Net Proceeds for the sale additional conditions specified in Article IV of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by this Agreement.
(f) If the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares Common Stock on any Settlement Date, the Company shall (Ai) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on a best efforts basis, up to that number of shares of Stock as may be directed by the Shares Company during the term of this Agreement, on the following terms.
(i) terms set forth herein. The Shares are to Stock will be sold on a daily basis or otherwise from time to time as shall be agreed described in the Registration Statement and Prospectus, in amounts, and subject to price limitations, as directed by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”)Manager.
(iib) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the The Company or the Sales Agent Manager may, upon notice to the other party hereto in writing (including by email correspondence) or by telephone (if confirmed promptly by electronic mail) (facsimile or as otherwise agreed to by the Company and the Sales Agentemail), at any time and from time to time suspend the offering of the Shares; Stock; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Stock sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(ivc) The compensation to the Sales Agent, as an agent of the Company, Manager for sales of the Shares Stock shall be up to 1.25at a fixed commission rate of 2% of the gross sales price of per share for the Shares Stock sold pursuant to under this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of to such sales, sale shall constitute the net proceeds to the Company for such Shares Stock (the “Net Proceeds”).
(vd) The Each time that the Company wishes to issue and sell the Stock hereunder it will notify the Sales Manager or the Alternative Sales Agent by email notice (or other method mutually agreed to in writing by the parties) (a “Placement Notice”) containing the parameters in accordance with which it desires the Stock to be sold, which shall provide written confirmation at a minimum include the number/amount of shares of Stock to be issued, the Company following the close of trading time period during which sales are requested to be made, any limitation on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the number/amount of shares of Stock that may be sold in any one trading day and any minimum price below which sales may not be made. The Company shall open and maintain a trading account (the Shares sold on such day, the Net Proceeds to the Company and the compensation payable “Trading Account”) at a clearing agent designated by the Sales Manager to facilitate the transactions contemplated by this Agreement. The Company to the Sales Agent shall, with respect to such sales.
(vi) Settlement for sales each sale of Stock sold by the Sales Manager, effect delivery of the Shares pursuant applicable number of Stock to this Section 4(a) will occur the Trading Account, on or before the first third business day following the date on which such sales are made (or such other date day as may be agreed by is industry practice for regular-way trading) following each sale of the Company and the Sales Agent Stock (each such dateeach, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the The Net Proceeds for from the sale of such Shares. Settlement for all such Shares the Stock shall be effected by free delivery of available in the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to Trading Account following the settlement of the transfer sale on the Settlement Date. The Sales Manager’s compensation shall be withheld from the sales proceeds on each Settlement Date and shall be paid to the Sales Manager. Subject to the terms of the Shares through DWAC for purposes Placement Notice, the Sales Manager may also sell Stock by any other method permitted by law, including but not limited to in a privately negotiated transaction subject to prior written approval of this Section 4(a)(vi)the Company.
(viie) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q))Date, the Company shall be deemed to have affirmed each of their respective representations representation, warranty, covenant and warranties other agreement contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company Manager under this Agreement shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this AgreementArticle IV herein.
(if) If the Company wishes shall default on its obligation to issue and sell deliver Stock on any Settlement Date, the Shares other than as set forth in Section 4(aCompany shall (i) of this Agreement (each, a “Placement”), it will notify hold the Sales Agent of the proposed terms Manager harmless against any loss, claim or damage arising from or as a result of such Placement. If default by the Company and (ii) pay the Sales Agent, acting as principal, wishes Manager any commission to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of would otherwise be entitled absent such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will controldefault.
(ig) Under no circumstances shall the aggregate number The Company agrees that any offer to sell, any solicitation of Shares sold pursuant an offer to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, buy or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and any sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Placement Shares shall only be effected by or through only one of the Agents Sales Manager or the Alternative Sales Agent on any single trading given day.
(f) Subject to , but in no event more than one, and the limitations set forth herein Company shall not request that the Sales Manager and as the Alternative Sales Agent sell Stock on the same day. The aggregate offering price of the Stock that may be mutually agreed upon by the Company and the Sales Agent, sales sold pursuant to this Agreement may not be requested by and the Company and need not be made by the Alternative Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company Agreement shall not offer, sell or deliver, or request exceed the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationMaximum Amount.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Trust agrees to issue and sell through the Sales Agent, as exclusive sales agentagent for the sale of Common Shares pursuant to this Agreement or an arrangement similar to that contemplated by this Agreement, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the CompanyTrust, on a reasonable efforts basis, up to the Maximum Amount of Common Shares during the term of this Agreement in accordance with the 1933 Act, the 1940 Act, the Securities Exchange Act of 1934 (the "1934 Act"), the rules of the NYSE, the Conduct Rules of the National Association of Securities Dealers, Inc. and the terms set forth herein; provided, however, the Trust and the Agent shall suspend the sale of Common Shares if the per share price for the Common Shares is less than the Minimum Price (as defined below); provided, further, that the Agent and the Trust agree that Pilgrim America Securities, Inc. ("PASI") may provide administrative services to the Trust in connection with sales under this Agreement but shall not act as a sales agent; provided, further, that the Agent shall not be deemed to be in violation of this sentence if such violation is caused by the activities of PASI or by the failure of the Trust to comply with its agreements and representations contained herein. The Trust shall calculate the Current Net Asset Value (as such term is used in Section 23(b) of the 1940 Act) per Common Share at the close of business on each day and shall notify the Agent of the result of such calculation by 5:30 p.m. on each day. "Minimum Price" means a price equal to (1) the Current Net Asset Value per Common Share as determined by the Trust on the following terms.
preceding business day plus (i2) the per Common Share amount of any commission to be paid to the Agent hereunder. The Shares Common Shares, up to the Maximum Amount, are to be sold on a daily basis or otherwise such days as shall be agreed to by the Company Trust and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares shall be up to 1.25% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the entire Maximum Amount. The Agent shall sell the Common Shares only by means of transactions effected on the NYSE. The Agent shall not solicit or arrange for the solicitation of customers' orders in anticipation of or in connection with such transactions. The Agent shall calculate the ADTV (as defined in Regulation M) of the Common Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placementweekly basis. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule rule 101(c)(1) of Regulation M under the Exchange Act M, are not satisfied with respect to the Sharessatisfied, it shall promptly notify the other party and sales of the Common Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
. In addition, the Trust or the Agent may, upon notice to the other party hereto by telephone (d) Each confirmed promptly by telecopy), suspend the offering of Common Shares at any time and each party agrees to promptly suspend the offering of Common Shares upon such notice; provided, however, that such suspension or termination shall not affect or impair the parties' respective obligations with respect to Common Shares sold hereunder prior to the giving of such notice. In connection with the sale of Common Shares under this Agreement, the Agent is not authorized by the Trust to give any information or to make any representations in connection with this Agreement other than those contained in the Registration Statement and the Prospectus, and agrees not to give any unauthorized information or to make any unauthorized representations. Except as specifically provided in this Agreement, the Agent is not authorized to act as an agent for the Trust, and agrees not to act or to purport to act as an agent for the Trust. The Trust and the Agent shall agree upon the number of Common Shares to or through be sold on any business day. The compensation to the Sales Agent for sales of Common Shares shall be at a fixed commission rate of 3% of the gross sales price per share of the first 4,000,000 Common Shares sold under this Agreement and 2.25% of the gross sales price for the next 6,000,000 Common Shares sold. The Agent shall be made provide written confirmation to the Trust following the close of business on any day in accordance with the terms of which Common Shares are sold under this Agreement orsetting forth the number of Common Shares sold, if applicable, a Terms Agreement.
(e) Any offer, solicitation or the gross proceeds from the sale of such shares, the highest and lowest executed sales price at which such shares were sold, the net proceeds to the Trust and the compensation payable by the Trust to the Agent with respect to such sales. Settlement for sales of Common Shares will occur on the third business day following the date on which such sales are made (each a "Closing Date"). The amount of proceeds for such sales to be delivered to the Trust against the receipt of the Common Shares sold shall be equal to the aggregate sales prices at which such Common Shares were sold, net of the Agent's compensation for such sales and after deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales. Settlement for Common Shares shall be effected by or through only one free delivery of shares to the Agent's account at The Depository Trust Company in return for payments in same day funds delivered to the account designated by the Trust. On each Closing Date, the Trust shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. On the first day of each month, the Trust shall affirm in writing each representation, warranty, covenant and other agreement contained in this Agreement. The Trust covenants and agrees with the Agent that the Trust will file a prospectus supplement under the applicable paragraph of Rule 497 of the Agents on any single trading day.
(f) Subject to the limitations set forth herein Rules and Regulations at such times as may be mutually agreed upon required by the Company 1933 Act and the Sales Rules and Regulations (but in any event not later than the second business day after the end of the week during which sales of Common Shares occur), which prospectus supplement will set forth the number of Common Shares sold through the Agent, the highest and lowest executed sales pursuant price at which Common Shares were sold, the net proceeds to this Agreement may not be requested the Trust and the compensation payable by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver Trust to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent . Any obligation of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such the Common Shares shall be subject to the continuing accuracy of the representations and warranties of the Trust herein, to the performance by the Trust of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in accordance with the terms Section 5 of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Samples: Sales Agency Agreement (Pilgrim America Prime Rate Trust)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManagers, as sales agentagents, and the Sales Agent each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager through whom the sale of Shares is effected on that day, on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Trading Day”), (B) the Company has instructed the Sales Agent such Manager by telephone (confirmed promptly by electronic mail) (mail or as otherwise other method mutually agreed to by the Company and the Sales Agentparties) from any of the individuals listed as an authorized representatives representative of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales sales, and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The On any Trading Day, the Company shall sell Shares through only one of the Managers, but in no event through more than one, and the Company shall give at least one business day prior written notice by facsimile, email or other method mutually agreed to by the parties to such Manager to notify it of any change of the Manager through whom the sale of Shares will be effected. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Company or the Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which any of Xxxxxxxxx, Xxxxxx Xxxxxxx, SunTrust or UBS is acting for the Company in a capacity other than as Manager under this Agreement. On any Trading Day, the Company will designate the maximum amount number of the Shares to be sold by the Sales Agent daily Manager effecting the sales on that day, as agreed to by the Sales Agent and such Manager (in any event not in excess of the amount of Shares available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board Board of directorsDirectors, or a duly authorized committee thereof, and notified to the Sales Agent Managers in writing (a “Placement Notice”writing), and the minimum price per share at which such Shares may be sold. Subject to the terms and conditions hereof, the Sales Agent each Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated to be sold by such Manager on any day; provided, however, that the Sales Agent no Manager shall have no any obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Managers shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may may, in the judgment of the Sales Agent such Manager, constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent such Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager through whom the sale of Shares is to be effected on that day, by telephone (confirmed promptly by electronic mail) (mail or as otherwise other method mutually agreed to by the Company and the Sales Agent) parties), not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent Manager, may, upon notice to the other party parties hereto by telephone (confirmed promptly by electronic mail) (mail or as otherwise other method mutually agreed to by the Company and the Sales Agentparties), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Each of the Managers hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings Offerings, and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManagers.
(iv) The compensation to the Sales AgentManagers, as an agent of the Company, for sales of the Shares shall be up to 1.252% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount 3(a). The gross sales price of any Shares sold pursuant to this Agreement by a Manager acting as otherwise mutually agreed upon by sales agent of the Company and shall be the Sales Agent from market price prevailing at the time of sale for shares of the Company’s Common Stock sold by such Manager on the NYSE or otherwise, at prices relating to timeprevailing market prices or at negotiated prices. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager through whom sales are affected shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third Trading Day is not a business day (as defined below), then settlement will occur on the next succeeding Trading Day that is also a business day), unless another date as may shall be agreed upon by the Company and the Sales Agent Manager selling such Shares (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent such Manager against payment of the Net Proceeds for from the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agentapplicable Manager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager selling such Shares harmless against any loss, claim or damage (including reasonable legal fees and expenses) arising from or as a result of such default by the Company Company, and (B) pay the Sales Agent such Manager any commission commission, discount or other compensation to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)4(q) hereof), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent a Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Managers of the proposed terms of such Placement. If the Sales Agenta Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent such Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ic) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement would exceed the number lesser of Shares (i) the amount set forth in Section 1, (ii) the amount available for offer and sale under the currently effective Registration Statement, and (iii) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board Board of directorsDirectors, or a duly authorized committee thereof, and notified to the Sales Agent Managers in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares at a price lower than the minimum price authorized from time to time by the Company’s Board of Directors or a duly authorized committee thereof, and notified to the Managers in writing.
(iii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party party, and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent Managers shall be made in accordance with the terms of this Agreement or, if applicable, a the Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Shares or delivery of instructions to offer and sell Shares as are set forth herein and as may be mutually agreed upon by the Company and the Sales AgentManagers, offers and sales of Shares pursuant to this Agreement may shall not be requested by the Company and need not be made by the Sales Agent Managers (i) during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of this Agreement, would prohibit the purchase or sale of Common Stock by persons subject to such policy, (ii) during any other period in which the Company is is, or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale(iii) except as provided in Section 3(f) below, of any Shares pursuant to this Agreement at any time during the period from and including the time date (each, an “Announcement Date”) on which the Company issues shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods of operations (each, an “Earnings Announcement”) through and including the Representation Date time that occurs in connection with is 24 hours after the time that the Company filing files (a Quarterly Report “Filing Time”) a quarterly report on Form 10-Q or an Annual Report annual report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement.
(f) If the Company wishes to offer, unless sell or deliver Shares at any time during the period from and including an Announcement Date through and including the time that is 24 hours after the corresponding Filing Time, the Company shall first (i) prepare and deliver to the Sales Agent Managers (with a copy to counsel for the Sales AgentManagers) a Current Report on Form 8-K that includes which shall include substantially the same financial and related information that as was included set forth in such the relevant Earnings Announcement (other than any earnings projections and projections, similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales AgentManagers, and, prior to its filing, and obtain the written consent of the Sales Agent Managers to the filing thereof (such filing (which consent shall not to be unreasonably withheld), (ii) provide the Sales Agent Managers with the officers’ certificatescertificate, accountants’ letter and opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, counsel called for by Section 4 hereof, (iii) afford the Sales Agent Managers the opportunity to conduct a due diligence review in accordance with Section 5(v4(w) hereof prior to filing such Earnings 8-K hereof, and (iv) file (rather than furnish) such Earnings 8-K with the Commission, then the provisions of clause (iii) of Section 3(e) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of the relevant quarterly report on Form 10-Q or annual report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (Ai) the delivery of any officers’ certificatescertificate, accountants’ letter and opinions or and letters of counsel or accountants’ letter pursuant to this Section 4(g3(f) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report quarterly report on Form 10-Q or Annual Report annual report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, accountants’ letters and legal opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, Section 4 hereof, and (Bii) this Section 4(g3(f) shall in no way affect or limit the operation of the provisions of clauses (i) and (ii) of Section 4(d) hereof3(e), which shall have independent application.
(hg) The Company acknowledges and agrees that (Ai) there can be no assurance that the Sales Agent Managers will be successful in selling the Shares, (Bii) the Sales Agent Managers will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Managers to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (Ciii) the Sales Agent Managers shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent Managers and the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Duke Realty Limited Partnership/)
Sale and Delivery of Securities. (a) (i) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell the Primary Shares to or through the Sales AgentAgents, acting as sales agentagents on behalf of the Company and/or acting as principal, and the Sales each Agent agrees to use its commercially reasonable efforts to sellsell such Primary Shares from time to time. Sales of the Shares, if any, through an Agent acting as sales agent or directly to an Agent acting as principal will be made by means of ordinary brokers’ transactions on the New York Stock Exchange, the Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market, the OTC Markets, or the NYSE Euronext, whichever is at the time the principal trading exchange or market for the CompanyCommon Stock, in negotiated transactions or in transactions that are deemed to be “at-the-market” offerings as defined in Rule 415 under the Shares Act, including sales made to or through a market maker other than on an exchange, in block transactions or by any other method permitted by law, at market prices prevailing at the following termstime of sale, at prices related to prevailing market prices or at negotiated prices.
(iii) In addition, subject to the terms and conditions set forth herein and provided that the Company has entered into a Forward Contract with a Forward Purchaser with respect to a relevant Forward, the Company may, in consultation with the Forward Purchaser and the applicable Agent, instruct such Agent, acting as forward seller on behalf of such Forward Purchaser, to offer and sell the Forward Hedge Shares borrowed from third parties to hedge such Forward Purchaser’s exposure under the Forward, as contemplated by the relevant Forward Instruction Notice (as defined in Section 3(b) hereof).
(b) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company Company, the relevant Agent and the Sales Agent related Forward Purchaser, if applicable, on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Trading Day”), (B) the Company has instructed the Sales such Agent by telephone (confirmed promptly by electronic mail) (mail or as otherwise other method mutually agreed to by the Company and the Sales Agentparties) from any of the individuals listed as an authorized representatives representative of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales sales, and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The On any Trading Day, the Company will designate the maximum amount of the Primary Shares to be sold by the Sales Agent daily effecting the sales on that day, as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereofsuch Agent, and notified to the Sales Agents in writing, and the minimum price per share at which such Primary Shares may be sold. The Company may, in consultation with the relevant Forward Purchaser and the applicable Agent, instruct such Agent, acting as forward seller on behalf of such Forward Purchaser, to offer and sell the Forward Hedge Shares borrowed from third parties to establish a commercially reasonable hedge of such Forward Purchaser’s exposure under the Forward, consistent with the instruction substantially in the form of Exhibit C hereto (or such other form as the Company, such Agent in writing and the related Forward Purchaser shall agree) (a the “Placement Forward Instruction Notice”). Subject Such Forward Instruction Notice shall specify the Forward Hedge Selling Period (as defined below), the number of Forward Hedge Shares to be sold by such Agent over the Forward Hedge Selling Period (the “Designated Forward Hedge Shares”) or the maximum aggregate gross sales price of the Forward Hedge Shares to be sold by such Agent over the Forward Hedge Selling Period (the “Aggregate Maximum Forward Hedge Amount”), the minimum price per share at which Forward Hedge Shares may be sold (the “Minimum Share Price”), the commission rate such Agent is to receive for selling such Forward Hedge Shares (the “Forward Seller Commission Rate”), the Spread, the time period for any Additional Adjustment, the Initial Stock Loan Fee, the Maximum Stock Loan Fee, the Maturity Date, the Forward Price Reduction Dates, the corresponding Forward Price Reduction Amounts (as each such term is defined in the relevant Forward Contract) and any other desired terms for the relevant Forward Contract. Such Agent and/or such Forward Purchaser shall promptly, and in any event prior to the opening of trading on the Trading Day following the Trading Day on which such Forward Instruction Notice was delivered, choose to (A) accept the terms and conditions hereofproposed in such Forward Instruction Notice, (B) decline to participate in the Sales Agent shall use its commercially reasonable efforts proposed Forward or (C) propose amended terms upon which to offer and sell all of participate in the Shares designated; proposed Forward; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale case of the Shares on behalf of clause (C), the Company may accept or reject such amended terms in its sole discretion no later than on the judgment of Trading Day following the Sales Trading Day on which such Agent constitute and/or such Forward Purchaser proposed amended terms and, if no response is delivered on such date, the sale amended terms shall be deemed rejected. Promptly upon the acceptance of a “block” under Rule 10b-18(a)(5) under the Exchange Act Forward Instruction Notice (or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act its amended terms and in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus any event prior to the NYSE in accordance with Rule 153 under opening of trading on the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”immediately following Trading Day).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension Forward Purchaser shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares shall be up to 1.25% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization enter into a Supplemental Confirmation in respect of such salesthe particular Forward, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied substantially in the judgment form of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein Exhibit B hereto and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the CompanyForward Instruction Notice.
Appears in 1 contract
Samples: Equity Distribution Agreement (DUKE REALTY LTD PARTNERSHIP/)
Sale and Delivery of Securities. (a) On The Company agrees to issue and sell the Securities to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein contained, but and subject to the terms conditions set forth herein, agrees, severally and conditions herein set forthnot jointly, to purchase at a price of $19.3725 per Unit (the “Purchase Price”) from the Company agrees to issue and sell through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following termsrespective number of Securities set forth opposite such Underwriter’s name in Schedule 1 hereto.
(ib) The Shares are Company understands that the Underwriters intend to be sold on make a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any public offering of the individuals listed as authorized representatives of Securities, and initially to offer the Company Securities on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) terms set forth in the Company has satisfied its obligations under Section 8 of this AgreementGeneral Disclosure Package. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Underwriters may offer and sell Securities to or through any affiliate of an Underwriter.
(c) Payment for the Securities shall have no be made by wire transfer in immediately available funds to the account specified by the Company to the Representatives, at the offices of Holland & Knight LLP, 000 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 at 8:00 a.m. New York time on June 12, 2024, or at such obligationother time or place on the same or such other date, in not later than the event an offer or sale of fifth business day thereafter, as the Shares on behalf of Representatives and the Company may agree upon in writing. The time and date of such payment for the judgment Securities is referred to herein as the “Closing Date”. Payment for the Securities to be purchased on the Closing Date shall be made against delivery to the Representatives for the respective accounts of the Sales Agent constitute several Underwriters of the Securities to be purchased on such date with any transfer taxes payable in connection with the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than such Securities duly paid by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, for sales Delivery of the Shares shall be up to 1.25% made through the facilities of The Depository Trust Company unless the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as Representatives shall otherwise mutually agreed upon by the Company and the Sales Agent from time to timeinstruct. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date Warrants shall be issued and delivered by the Company in physical certificated form at the direction of the Representatives, issued in such names and in such denominations as the Representatives may direct by notice in writing to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that the Representatives and the other Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (Aincluding in connection with determining the terms of the offering) there can and not as a financial advisor or a fiduciary to, or an agent of, the Company, any Subsidiary or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company, any Subsidiary or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be no assurance that responsible for making its own independent investigation and appraisal of the Sales Agent will be successful in selling transactions contemplated hereby, and neither the Shares, (B) Representatives nor the Sales Agent will incur no other Underwriters shall have any responsibility or liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure Subsidiary with respect thereto. Any review by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent Representatives and the Companyother Underwriters of the Company or any Subsidiary, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company or any Subsidiaries.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, as exclusive sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on a reasonable efforts basis, up to 2,000,000 Shares (the Shares "Maximum Amount") on the following terms.
(i) terms set forth herein. The Shares Shares, up to the Maximum Amount, are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent on a daily or other basis as reasonably agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the designated Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus up to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionMaximum Amount. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, Agent for sales of the Shares shall be up to 1.25at a fixed commission rate of 3.0% of the gross sales price per share for the first 1,800,000 Shares sold under this Agreement and 2.5% of the gross sales price per share for the remainder of the Shares sold pursuant to under this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “"Net Proceeds”").
(v) The Sales Agent shall provide written confirmation . Notwithstanding any provision in this Agreement to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Datecontrary, the Company shall (A) indemnify is under no obligation to issue and hold the Sales Agent harmless against sell any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed Agent pursuant to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation The Company or the Agent may, upon notice to the other party by telephone (confirmed promptly by telecopy), suspend the offering of Shares; provided, however, that such suspension shall not affect or impair the Sales parties' respective obligations with respect to any Shares sold hereunder prior to the giving of such notice. The Company may also instruct the Agent to use its commercially reasonable efforts by telephone (confirmed promptly by telecopy) not to sell Shares if such sales cannot be effected at or above the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance price designated by the Company of its obligations hereunder and to in such instruction. Notwithstanding the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (eachforegoing, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the Maximum Amount or the number of Shares authorized from time to time to be issued and sold shares of Common Stock available for issuance under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) currently effective Registration Statement. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of . The Agent shall sell the Shares to or through only by means of ordinary brokers' transactions on the Sales New York Stock Exchange (the "NYSE"). The Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject provide written confirmation to the limitations set forth herein and as may be mutually agreed upon by Company following the Company and close of trading on the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period NYSE each day in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations are sold under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.setting forth the
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE Nasdaq (other than a day on which the NYSE Nasdaq is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as reasonably agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated. The gross sales of the Shares sold under this Section 3(a) shall be the market price for shares of the Company’s Common Stock sold by the Manager under this Section 3(a) on the Nasdaq at the time of such sale.
(ii) Notwithstanding the foregoing, the Company may instruct the Manager by telephone (confirmed promptly by telecopy) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors and notified to the Manager in writing. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the Sales Agent parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of ordinary brokers’ transactions between members of the Nasdaq that qualify for delivery of a Prospectus to the Nasdaq in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At the Market Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall have no obligation to offer or sell any Shares, be agreed by the Company and the Manager. The Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or a sale of the Shares on behalf of the Company may in the judgment of the Sales Agent would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of not an At the NYSE that qualify for delivery of a Prospectus Market Offering, the Company will provide to the NYSE in accordance with Rule 153 under Manager, at the Act (such transactions are hereinafter referred Manager’s request and upon reasonable advance notice to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (on or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving Settlement Date, the opinions of such notice.
(iii) The Sales Agent hereby covenants counsel, accountants’ letters and agrees not officers’ certificates pursuant to make any sales Section 5 hereof that the Company would be required to provide to the Manager in connection with a sale of the Shares on behalf of the Company, pursuant to this Section 4(a)a Terms Agreement, other than (A) by means of At-the-Market Offerings each dated the Settlement Date, and (B) such other sales of documents and information as the Shares on behalf of the Company in its capacity as agent of the Company as Manager shall be agreed by the Company and the Sales Agentreasonably request.
(iv) The compensation to the Sales AgentManager for sales of the Shares, as an agent of the Company, for sales of the Shares shall be up to 1.253.5% of the gross sales price of the Shares sold pursuant to this Section 4(a3(a) or and such lower amount rate of compensation shall not apply when the Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeprincipal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE Nasdaq each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi)effective overnight Federal Funds rate.
(vii) At each Time of Sale, Settlement Date and Representation Filing Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. The Company covenants and agrees with the Manager that (A) with respect to each of the Company’s first three fiscal quarters, on or prior to the date on which the Company shall be obligated to file a quarterly report on Form 10-Q in respect of such quarter and (B) with respect to the Company’s fourth fiscal quarter for year 2008 and for each year thereafter, on or prior to the thirty-fifth day after the end of such quarter in which sales of the Shares were made by the Manager pursuant to this Section 3(a) (each such date, a “Filing Date”), the Company will file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b), which prospectus supplement will set forth, with regard to such quarter, the number of the Shares sold through the Manager as agent pursuant to this Section 3(a) in At the Market Offerings, the Net Proceeds to the Company and the compensation paid by the Company with respect to such sales of the Shares pursuant to this Section 3(a) and deliver such number of copies of each such prospectus supplement to the Nasdaq as are required by such exchange. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any a Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of the Shares sold pursuant to this Agreement and any Terms Agreement exceed the number set forth in Section 1 or the number of Shares authorized from time to time to be issued and sold shares of the Common Stock available for issuance under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Manager shall calculate on a weekly basis the average daily trading volume (as defined by Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement orand, if applicable, a Terms Agreement.
(e) Any offer, solicitation or which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares shall to be effected purchased by or through only one the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company Shares, and the Sales Agent, sales pursuant time and date (each such time and date being referred to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession herein as a “Time of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings AnnouncementDelivery”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as place of delivery of and payment for the same fiscal period or periodssuch Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data accountants’ letters and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter certificates pursuant to this Section 4(g) shall not relieve the Company from any 5 of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person information or entity if it does not sell Shares for any reason other than a failure documents required by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the CompanyManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Maxwell Technologies Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell the Securities from time to time through the Sales AgentManager, acting as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares Securities on the following terms.
(i) The Shares Securities are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE New York Stock Exchange (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“NYSE”), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale Securities hereunder. The gross sales price of the Shares on behalf Securities sold under this Section 2(a) shall be the market price for shares of the Company may in Company’s Common Stock at which such Securities were sold by the judgment of the Sales Agent constitute the sale of a “block” Manager under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”this Section 2(a).
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManager will be successful in selling the Securities, (B) the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (Manager will incur no liability or as otherwise agreed obligation to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or any other person or entity if it does not sell the Sales Agent Securities for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Securities as required under this Agreement, and (C) the Manager shall be under no obligation to purchase the Securities on a principal basis pursuant to this Agreement.
(iii) The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Securities for any reason and at any time; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Securities sold hereunder prior to the giving of such notice.
(iiiiv) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares Securities on behalf of the Company, pursuant to this Section 4(a2(a), other than (A) by means of At-the-Market Offerings ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus in accordance with Rule 153 or any other transactions that so qualify (all such transactions are hereinafter referred to as “Continuous Offerings”) and (B) such other sales of the Shares Securities on behalf of the Company in its capacity as sales agent of the Company as shall be agreed by the Company and the Sales AgentManager.
(ivv) The compensation to the Sales Agent, as an agent of the Company, Manager shall receive no commission for sales of the Shares shall be up Securities with respect to 1.25% which the Manager acts as sales agent under this Agreement. The proceeds from the sales of the gross sales price of the Shares sold Securities pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceedsAgreement, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares Securities (the “Net Proceeds”).
(vvi) The Sales Agent Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company following the close of trading on the NYSE each day in which the Shares Securities are sold under this Section 4(a2(a) setting forth the amount number of the Shares Securities sold on such day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and any expenses of the Manager reimbursable pursuant hereto by the Company and the compensation with respect to such sales payable by the Company to the Sales Agent Manager with respect to such sales. Such expenses shall be set forth and invoiced in periodic statements from the Manager to the Company, with payment to be made by the Company promptly after its receipt thereof.
(vivii) Settlement for sales of the Shares Securities pursuant to this Section 4(a2(a) will occur at 10:00 a.m. (Eastern Time), or at such other time as the Company and the Manager may agree, on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares Securities sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such SharesSecurities. Settlement for all such Shares Securities shall be effected by free delivery of the Shares by the Company or its transfer agent Securities to the Sales AgentManager’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian Custodial System (“DWAC”) ), or by such other means of delivery as may be mutually agreed upon by the parties hereto, which Securities shall in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, Company or its transfer agent (if applicable), ) shall default on its obligation to deliver the Shares Securities on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Manager breaches this Agreement by failing to deliver the Net Proceeds on any Settlement Date for the Securities delivered by the Company, the Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi)Manager.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Date, Representation Date (as defined in Section 5(q3(m)), date on which the Company shall file a Quarterly Report on Form 10-Q (“Form 10-Q”) or an Annual Report on Form 10-K (“Form 10-K”) in respect of any fiscal quarter in which sales of Securities were made by the Manager pursuant to Section 2(a) of this Agreement, and date on which the Company shall be obligated to file a Form 10-Q or Form 10-K in respect of such quarter, the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares Securities on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ib) Under no circumstances shall the aggregate number of Shares the Securities sold pursuant to this Agreement exceed the number of Shares the Securities authorized from time to time to be issued and sold under this Agreement by the Company’s board of directorsBoard, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing.
(iic) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the SharesSecurities, it shall promptly notify the other party and sales of the Shares Securities under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale The Company agrees that, on any single given day, any offer to sell, any solicitation of an offer to buy, or any sales of Securities, in each case by or on behalf of the Shares to Company, shall only be effected by or through the Sales Agent Manager; provided, however, that the foregoing limitation shall be not apply on any day during which no sales are made in accordance with the terms of pursuant to this Agreement or, if applicable, a Terms Agreementand no Settlement Date is pending with respect to Securities previously sold hereunder.
(e) Any offerNotwithstanding any other provision of this Agreement, solicitation or the Company shall not request the sale of the Shares shall any Securities that would be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company sold, and the Sales Agent, sales pursuant to this Agreement may Manager shall not be requested by the Company and need not be made by the Sales Agent obligated to sell, during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists at the Execution Time, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, or during any other period in which the Company is is, or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision ; provided that, unless otherwise notified by the Company to the Manager, for purposes of this Agreement, paragraph (e) such period shall be deemed to last from the first day of the month after a calendar quarter until 24 hours after the filing of the earnings release relating to such quarter. The Company shall not offer, sell or deliver, or request agrees to provide the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (Manager with a copy of its xxxxxxx xxxxxxx policy as it exists at the Execution Time, and to counsel for advise the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included Manager in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery writing of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve changes thereto after the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationExecution Time.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Partnership agrees to issue and sell through the Sales AgentManagers, as sales agentagents, and the Sales Agent each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the CompanyPartnership, the Shares Units on the following terms.
(i) The Shares Units are to be sold on a daily basis or otherwise as shall be agreed to by the Company Partnership and the Sales Agent such Manager on any day that (A) is a trading day for the NYSE NASDAQ (a “Trading Day”) (other than a day Trading Day on which the NYSE NASDAQ is scheduled to close prior to its regular weekday closing time), (B) the Company Partnership has instructed the Sales Agent such Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule B hereto (the “Authorized Company Partnership Representatives”) to make such sales and (C) the Company Partnership has satisfied its obligations under Section 8 6 of this Agreement. The Company Partnership will designate the maximum amount number of the Shares Units to be sold and the minimum price per Unit at which such Units may be sold by the Sales Agent such Manager daily as agreed to by the Sales Agent such Manager and in any event not in excess of the amount of Units available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares Units authorized from time to time to be issued and sold under this Agreement by the CompanyGeneral Partner’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent such Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent such Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Units designated on any day; provided, however, that the Sales Agent such Manager shall have no obligation to offer or sell any SharesUnits, and the Company Partnership acknowledges and agrees that the Sales Agent such Manager shall have no such obligation, in the event an offer or sale of the Shares Units on behalf of the Company Partnership may in the judgment of the Sales Agent such Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent such Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE NASDAQ that qualify for delivery of a Prospectus to the NYSE NASDAQ in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”)Act.
(ii) Notwithstanding the foregoing, the CompanyPartnership, through any of the Authorized Company Partnership Representatives, may instruct the Sales Agent such Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares Units if such sales cannot be effected at or above the price designated by the Company Partnership in any such instruction. In addition, the Company Partnership or the Sales Agent such Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agentmail)(a “Suspension Notice”), suspend the offering of the Shares; Units (with the period of time from the Suspension Notice until the recommencement of the offering of the Units referred to as a “Suspension Period”); provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Units sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Each Manager hereby covenants and agrees not to make any sales of the Shares Units on behalf of the CompanyPartnership, pursuant to this Section 4(a3(a), other than (A) by means of At-the-Market Offerings any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act, including, without limitation, sales made directly on the NASDAQ, on any other existing trading market for the Common Units or to or through a market maker, (B) by any other method permitted by law, including, without limitation, in privately negotiated transactions and (BC) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership and the Sales Agentsuch Manager.
(iv) The compensation to the Sales Agent, as an agent of the Companyeach Manager, for sales of the Shares Units for which the Manager acts as sales agent under this Agreement shall be up to 1.252% of the gross sales price of the Shares Units sold pursuant to this Section 4(a3(a) or such lower amount as otherwise mutually agreed upon to in writing (including by the Company electronic mail) by such Manager and the Sales Agent from time to timePartnership . The remaining proceedsproceeds from such sales, after further deduction for such compensation and any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company Partnership for such Shares Units (the “Net Proceeds”).
(v) The Sales Agent Each Manager shall provide written confirmation to the Company Partnership following the close of trading on the NYSE NASDAQ each day in which the Shares Units are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares Units sold on such day, the aggregate Net Proceeds to the Company and Partnership, the aggregate compensation payable by the Company Partnership to the Sales Agent such Manager with respect to such sales, an itemization of the deductions made by such Manager as set forth in Section 3(a)(iv) from the gross proceeds received from such sales and the Net Proceeds payable to the Partnership for such sales.
(vi) Settlement for sales of the Shares Units pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third trading day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company Partnership and the Sales Agent such Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Units sold through the Sales Agent such Manager for settlement on such date shall be issued and delivered by the Company Partnership to the Sales Agent such Manager against payment of the Net Proceeds for from the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares Units by the Company Partnership or its transfer agent to the Sales Agentsuch Manager’s account, or to the account of the Sales Agentsuch Manager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCommon Units eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares Units on any Settlement Date, the Company Partnership shall (Ai) indemnify and hold the Sales Agent such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company Partnership and (Bii) pay the Sales Agent such Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Partnership Representatives shall be the contact persons for the Company Partnership for all matters related to the settlement of the transfer of the Shares Units through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(q)), the Company Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement as if such representation and warranty were made as of their respective such date (other than those representations and warranties made as of a specific date), which shall be deemed to incorporate the disclosures contained in this Agreementor incorporated by reference into the Registration Statement and the Prospectus, in each case as amended or supplemented as of such date. Any obligation of the Sales Agent any Manager to use its commercially reasonable efforts to sell the Shares Units on behalf of the Company Partnership shall be subject to the continuing accuracy of the representations and warranties of the Company Partnership herein, to the performance by the Company Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company Partnership wishes to issue and sell the Shares Units other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent a Manager of the proposed terms of such Placement. If the Sales Agentsuch Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyPartnership, wishes to accept amended terms, the Sales Agent such Manager and the Company Partnership will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the Partnership cause or request the offer or sale of any Units pursuant to this Agreement if, after giving effect to the sale of such Units, the aggregate gross sales proceeds or the aggregate number of Shares the Units sold pursuant to this Agreement would exceed the number lesser of Shares (A) the amount set forth in Section 1, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the CompanyGeneral Partner’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Managers in writing. Under no circumstances shall the Partnership cause or request the offer or sale of any Units pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the General Partner’s board of directors or a duly authorized committee thereof, and notified to the Managers in writing.
(ii) If either any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the SharesUnits, it shall promptly notify the other party parties and sales of the Shares Units under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares Units to or through the Sales Agent any Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Units or delivery of instructions to offer and sell Units as are set forth herein and as may be mutually agreed upon by the Company Partnership and the Sales Agentany Manager, offers and sales of Units pursuant to this Agreement may shall not be requested by the Company Partnership and need not be made by such Manager at any time (i) during the Sales Agent 14 calendar days prior to the date (each, an “Announcement Date”) on which the Partnership shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”), (ii) at any time from and including an Announcement Date through and including the time that is 24 hours after the time that the Partnership files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement, or (iii) during any other period in which the Company is Partnership is, or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company Partnership acknowledges and agrees that (Ai) there can be no assurance that the Sales Agent any Manager will be successful in selling the SharesUnits, (Bii) the Sales Agent such Manager will incur no liability or obligation to the Company Partnership or any other person or entity if it does not sell Shares Units for any reason other than a failure by the Sales Agent such Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Units in accordance with the terms of this Agreement, and (Ciii) the Sales Agent such Manager shall be under no obligation to purchase Shares Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent such Manager and the CompanyPartnership.
Appears in 1 contract
Samples: Equity Distribution Agreement (Memorial Production Partners LP)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, as non-exclusive sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as non-exclusive sales agent for the Company, on a best efforts basis, up to the Maximum Amount of Shares on the following terms.
(i) terms set forth herein. The Shares Shares, up to the Maximum Amount, are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as reasonably agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable best efforts to offer and sell all of the designated Shares designated; provided, however, that up to the Sales Agent shall have no obligation to offer or sell any Shares, and Maximum Amount. Notwithstanding the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of foregoing the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction; furthermore, the Company shall not authorize the issuance and sale of, and the Agent shall not be obligated to use its best efforts to sell, any Shares at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Agent in writing. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy), suspend the offering of the Shares; Shares; provided, however, that such suspension or termination shall not affect or impair the parties’ ' respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) The Sales Agent hereby covenants and agrees of Regulation M under the Exchange Act, are not satisfied with respect to make any sales the Shares, the amount of the Shares that may be sold on behalf of the Company, any day pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings Agreement and (B) such any other sales agency agreement shall not exceed 10% of the average daily trading volume of the Shares on behalf for the sixty days prior to such day (provided, that any Shares purchased by the Agent as principal during such period shall not be included in the calculation of the Company in its capacity as agent of the Company as shall be trading volume). Unless otherwise agreed by the Company and the Sales Agent.
, the Agent shall sell the Shares only by means of ordinary brokers' transactions on the New York Stock Exchange (iv) the "NYSE"). Unless otherwise agreed to by the Company and the Agent, the Agent shall not solicit or arrange for the solicitation of customer's orders in anticipation of or in connection with such transactions, nor shall it sell short as principal Shares of the Company, except in connection with customary market making activities in the Company's outstanding securities. The Agent shall not engage in any special selling efforts or selling methods relating to the Shares within the meaning of Rule 100 of Regulation M under the Exchange Act. The Agent shall calculate on a weekly basis the average daily trading volume of the Shares. The compensation to the Sales Agent, as an agent of the Company, Agent for sales of the Shares shall be up to 1.252.0% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by sold, in the Company and the Sales Agent from time to timeform of a commission. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “"Net Proceeds”").
(v) . The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) Agreement setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) . Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “"Settlement Date”"). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the 's account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, Corporation in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Agent breaches this Agreement by failing to deliver proceeds on any Settlement Date for Shares delivered by the Company, the Agent will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) effective overnight Federal Funds rate. At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q))Date, the Company shall be deemed to have affirmed each of their respective representations representation, warranty, covenant and warranties other agreement contained in this Agreement, and on each Filing Date (as defined below), the Company shall affirm in writing each representation, warranty, covenant and other agreement contained in this Agreement. The Company covenants and agrees with the Agent that on or prior to the second business day after the end of each calendar week during which sales of Shares were made by the Agent (each such week a "Reporting Period"), the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) (each a "Filing Date"), which prospectus supplement will set forth, with regard to such Reporting Period, the dates included within the Reporting Period, the amount of Shares sold through the Agent, the Net Proceeds to the Company and the compensation payable by the Company to the Agent with respect to sales of Shares pursuant to this Agreement (all as provided in writing by the Agent for inclusion in each such prospectus supplement) and (ii) deliver such number of copies of each such prospectus supplement to the New York Stock Exchange as are required by such Exchange. Any obligation of the Sales Agent to use its commercially reasonable best efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Samples: Sales Agency Agreement (Corrections Corporation of America)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated.
(ii) Notwithstanding the foregoing, the Company may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors and notified to the Manager in writing. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the Sales Agent parties’ respective obligations with respect to any Shares sold hereunder prior to the giving of such notice.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act or any other existing trading market for the Common Stock or to or through a market maker other than on an exchange (such transactions are hereinafter referred to as “At the Market Offerings”), (B) by any other method permitted by law, including without limitation, in privately negotiated transactions, (C) directly on or through any other national securities exchange or facility thereof, a trading facility of a national securities association, an alternative trading system, an electronic communication network, a “dark pool” or any similar market venue and (D) by such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall have no obligation to offer or sell any Shares, be agreed by the Company and the Manager. The Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or a sale of the Shares on behalf of the Company may in the judgment of the Sales Agent would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of not an At the NYSE that qualify for delivery of a Prospectus Market Offering, the Company will provide to the NYSE in accordance with Rule 153 under Manager, at the Act (such transactions are hereinafter referred Manager’s request and upon reasonable advance notice to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any on or prior to the Settlement Date (as defined below), the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 hereof that the Company would be required to provide to the Manager in connection with a sale of the Authorized Shares pursuant to a Terms Agreement, each dated the Settlement Date (as defined below), and such other documents and information as the Manager shall reasonably request. The Company Representativesacknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Shares, may instruct (B) the Sales Agent by telephone (confirmed promptly by electronic mail) (Manager will incur no liability or as otherwise agreed obligation to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or any other person or entity if it does not sell any Shares for any reason other than a failure to use its commercially reasonable efforts to sell such Shares as required by this Agreement, and (C) the Sales Agent may, upon notice Manager shall be under no obligation to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make purchase any sales of the Shares on behalf of the Company, a principal basis pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentAgreement.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.25% as set forth on Schedule B, and such rate of compensation shall not apply when the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeprincipal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company (which may be made by facsimile or email) following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount number of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first business third trading day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or its designee’s account (provided that the Manager shall have given the Company written notice of such designee prior to the account of the Sales Agent’s designee, Settlement Date) at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim claim, damage, or damage expense (including reasonable legal fees and expenses) arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission commission, discount or other compensation to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi)effective overnight Federal Funds rate.
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)4(r), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any a Terms Agreement, the terms of such Terms Agreement will control.
(c) (i) Under The Company will under no circumstances shall instruct the Manager to sell Shares such that the aggregate number offering price of the Shares sold pursuant to this Agreement, the Alternative Distribution Agreements and any related Terms Agreement exceed in the number aggregate the lesser of Shares authorized from time to time to the Maximum Amount and the aggregate dollar value of shares of Common Stock that may be issued offered and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party party, and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement orand, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(e) Any offerNo sales of Shares shall take place, solicitation or and the Company shall not request the sale of the any Shares shall that would be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company sold, and the Sales Agent, sales pursuant to this Agreement may Manager shall not be requested by the Company and need not be made by the Sales Agent obligated to sell, during any period in which the Company is is, or could be deemed to be, in possession of material non-public information.
(gf) Notwithstanding any other provision Until the termination of this Agreement, the Company shall Manager and its affiliates will not offertake, sell directly or deliverindirectly, any action designed, or request which will constitute, or has constituted, or might reasonably be expected to cause or result in the offer stabilization or sale, manipulation of the price of any Shares pursuant to this Agreement at any time during the period from and including the time security of the Company issues a press release containing, to facilitate the sale or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent resale of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationShares.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed mail to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B D hereto (the “Authorized Company Representatives”)) to make such sales and (C) the Company has satisfied its obligations under Section 8 5 of this Agreement. The Company will designate the maximum amount number of the Shares to be sold by the Sales Agent Manager daily or as otherwise agreed to by the Sales Agent Manager and the Company and in any event not in excess of the amount of Shares available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated on any day; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by mail from the Company and the Sales AgentCompany) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction, which price shall not be below the par value of the Common Stock. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agentmail from such party), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.252% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company as soon as practicable following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third trading day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company and the Sales Agent Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 6 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement or as set forth in Section 3(a) of any Alternative Equity Distribution Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ii) In the event the Company engages the Manager for a sale of Shares that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act (each a “Relevant Transaction”), the Company and the Manager will agree to compensation that is customary for the Manager with respect to such transactions.
(i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement and any Alternative Equity Distribution Agreement would exceed the number lesser of Shares (A) the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement and any Alternative Equity Distribution Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and notified to the Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Alternative Equity Sales Distribution Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Manager (which such request may be by electronic mail), the Manager shall promptly calculate and provide in writing to the Company a report setting forth, for the prior week, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(d) Each sale of the Shares to or through the Sales Agent Manager or any Alternative Manager, as applicable, shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement, or the respective Alternative Equity Distribution Agreement or, if applicable, an Alternative Terms Agreement, as applicable.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Shares or delivery of instructions to offer and sell Shares as are set forth herein herein, or in any Alternative Equity Distribution Agreement, and as may be mutually agreed upon by the Company and the Sales AgentManager or any Alternative Manager, as applicable, offers and sales of Shares pursuant to this Agreement may or any Alternative Equity Distribution Agreement, as applicable, shall not be requested by the Company and need not be made by the Sales Agent Manager or any Alternative Manager, as applicable, at any time when or during any period (i) in which the Company is or could be deemed to be, be in possession of material non-public information.
, (gii) Notwithstanding any other provision the Company's ixxxxxx xxxxxxx policy, as then in effect, would prohibit the purchases or sales of the Company's Common Stock by its officer or directors; provided that, for purposes of this Agreementclause (ii), such period shall be deemed to end on the date that is two (2) days after the date on which the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for of operations, unless the Company provides prior written notice to the Manager of a fiscal period change in its ixxxxxx xxxxxxx policy or periods an extension of the prohibition of purchases and sales thereunder or (iii) from and including the date on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “"Earnings Announcement”") through and including the Representation Date time that occurs in connection with is 24 hours after the time that the Company filing files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel except, for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement purposes of this clause (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”iii), in form accordance with the diligence protocol regarding the Distribution Agreements and substance reasonably satisfactory to with the Sales Agent, and, prior to its filing, obtain the written consent agreement of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationManager.
(hf) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager or any Alternative Manager will be successful in selling the Shares, (B) neither the Sales Agent Manager nor any Alternative Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Manager or any Alternative Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement or any Alternative Equity Distribution Agreement, as applicable, and (C) neither the Sales Agent Manager nor any Alternative Manager shall be under no any obligation to purchase Shares on a principal basis pursuant to this Agreement or any Alternative Equity Distribution Agreement, as applicable, except as otherwise specifically agreed in writing by the Sales Agent Manager and the Company or any Alternative Manager and the Company, as applicable.
(g) The Company agrees that, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Shares or sales of Common Stock in Rule 415(a)(4) Offerings shall only be effected by or through the Manager or an Alternative Manager, but in no event by more than one Manager on any single given day, and the Company shall in no event request that the Manager or any Alternative Manager sell Shares on the same day.
Appears in 1 contract
Samples: Equity Distribution Agreement (Omega Healthcare Investors Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Partnership agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the CompanyPartnership, the Shares Units on the following terms.
(i) The Shares Units are to be sold on a daily basis or otherwise as shall be agreed to by the Company Partnership and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company Partnership has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule B C hereto (the “Authorized Company Partnership Representatives”) to make such sales and (C) the Company Partnership has satisfied its obligations under Section 8 6 of this Agreement. The Company Partnership will designate the maximum amount number of Units to be sold and the Shares to minimum price per Unit at which such Units may be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount of Units available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares Units authorized from time to time to be issued and sold under this Agreement by the CompanyETP LLC’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Units designated on any day; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any SharesUnits, and the Company Partnership acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares Units on behalf of the Company Partnership may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the CompanyPartnership, through any of the Authorized Company Partnership Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares Units if such sales cannot be effected at or above the price designated by the Company Partnership in any such instruction. In addition, the Company Partnership or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Units for any reason and at any time (a “Suspension”); provided, however, that such suspension Suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Units sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares Units on behalf of the CompanyPartnership, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the CompanyPartnership, for sales of the Shares Units shall be up to 1.252% of the gross sales price of the Shares Units sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to timespecified in Schedule D attached hereto. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company Partnership for such Shares Units (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company Partnership following the close of trading on the NYSE each day in which the Shares Units are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares Units sold on such day, the aggregate Net Proceeds to the Company Partnership, and the aggregate compensation payable by the Company Partnership to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares Units pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third trading day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company Partnership and the Sales Agent Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Units sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company Partnership to the Sales Agent Manager against payment of the Net Proceeds for the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares Units by the Company Partnership or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formunits eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares Units on any Settlement Date, the Company Partnership shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company Partnership and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Partnership Representatives shall be the contact persons for the Company Partnership for all matters related to the settlement of the transfer of the Shares Units through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Date, Representation Date (as defined in Section 5(q4(q)) and Filing Time (as defined in Section 3(e)), the Company Partnership shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares Units on behalf of the Company Partnership shall be subject to the continuing accuracy of the representations and warranties of the Company Partnership herein, to the performance by the Company Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company Partnership wishes to issue and sell the Shares Units other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyPartnership, wishes to accept amended terms, the Sales Agent Manager and the Company Partnership will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the Partnership cause or request the offer or sale of any Units if, after giving effect to the sale of such Units, the aggregate gross sales proceeds or the aggregate number of Shares the Units sold pursuant to this Agreement would exceed the number lesser of Shares (A) the amount set forth in Section 1, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the CompanyETP LLC’s board of directors, or a duly authorized committee thereof, and notified the Manager in writing. Under no circumstances shall the Partnership cause or request the offer or sale of any Units at a price lower than the minimum price authorized from time to time by ETP LLC’s board of directors or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the SharesUnits, it shall promptly notify the other party and sales of the Shares Units under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares Units to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Units or delivery of instructions to offer and sell Units as are set forth herein and as may be mutually agreed upon by the Company Partnership and the Sales AgentManager, sales pursuant to this Agreement may the Partnership shall not request the sale of any Units that would be sold, and the Manager shall not be requested by obligated to sell, (i) during the Company and need not be made by 14 calendar days prior to the Sales Agent during any period in date (each, an “Announcement Date”) on which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company Partnership shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods of operations (each, an “Earnings Announcement”), (ii) at any time from and including an Announcement Date through and including the Representation Date time that occurs in connection with is 24 hours after the Company filing time that the Partnership files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, or (iii) during any other period in which the Partnership is, or could be deemed to be, in possession of material non-public information; provided that, unless otherwise agreed between the Company shall first Partnership and the Manager, for purposes of (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide above, such period shall be deemed to end 24 hours after the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationnext subsequent Filing Time.
(hf) The Company Partnership acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager will be successful in selling the SharesUnits, (B) the Sales Agent Manager will incur no liability or obligation to the Company Partnership or any other person or entity if it does not sell Shares Units for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Units in accordance with the terms of this Agreement, and (C) the Sales Agent Manager shall be under no obligation to purchase Shares Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent Manager and the CompanyPartnership.
Appears in 1 contract
Samples: Equity Distribution Agreement (Energy Transfer Partners, L.P.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares on the following terms.
(i) Shares. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as reasonably agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that so designated by the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Company. Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Agent shall not be obligated to use its reasonable efforts to sell, any Shares at a price lower than the minimum price therefor designated from time to time by the Company's board of directors and notified to the Agent in writing. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy), suspend the offering of the Shares; Shares; provided, however, that such suspension or termination shall not affect or impair the parties’ ' respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares shall be up to 1.25% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number set forth in Section 1 or the number of Shares authorized from time to time to be issued and sold shares of Common Stock available for issuance under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) currently effective Registration Statement. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
. The Agent shall calculate on a weekly basis the average daily trading volume (das defined by Rule 100 of Regulation M under the Exchange Act) Each sale of the Common Stock. The Agent hereby covenants and agrees not to make any sales of Shares on behalf of the Company other than by means of ordinary brokers' transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Securities Act. The gross sales price of any Shares sold under this Agreement shall be the market price for shares of the Company's Common Stock sold by the Agent under this Agreement on the NYSE at the time of such sale. The compensation payable to the Agent for sales of Shares shall be equal to 3.00% of the gross sales price of the Shares sold pursuant to this Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the "Net Proceeds"). The Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which Shares are sold under this Agreement setting forth the amount of Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Agent with respect to such sales. Settlement for sales of Shares will occur on the third business day following the date on which such sales are made, unless another date shall be agreed to by the Company and the Agent (each such day, a "Settlement Date"). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be made in accordance with delivered by the terms Company to the Agent against payment of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or the Net Proceeds from the sale of the such Shares. Settlement for all Shares shall be effected by or through only one free delivery of Shares to the Agent's account at The Depository Trust Company in return for payments by the Agent of the Agents Net Proceeds from the sale of such Shares in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any single trading day.
Settlement Date, the Company shall (fi) Subject hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the applicable Net Proceeds on any Settlement Date for Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate. On each date of execution of any sale order (a "Trade Date") and each Filing Date, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. The Company covenants and agrees with the Agent that on or prior to the limitations second business day after any date on which the Company shall file an annual report on Form 10-K or quarterly report on Form 10-Q in respect of any quarter in which sales of Shares were made by the Agent under this Agreement (each such date, a "Filing Date"), the Company will (i) affirm in writing each representation, warranty, covenant and other agreement contained in this Agreement, (ii) file a prospectus supplement to the Prospectus included as part of the Registration Statement with the Commission under the applicable paragraph of Rule 424(b) of the Securities Act, which prospectus supplement will set forth herein and as may be mutually agreed upon forth, with regard to such quarter, the number of Shares sold through the Agent under this Agreement, the Net Proceeds received by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested compensation paid by the Company and need not be made by to the Sales Agent during any period in which the Company is or could be deemed with respect to be, in possession sales of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing deliver such Earnings 8-K and (iv) file (rather than furnish) number of copies of each such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation prospectus supplement to the Company or any other person or entity if it does not sell Shares for any reason other than a failure NYSE as are required by such exchange. Any obligation of the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company, and the performance by the Company of its obligations, set forth in accordance with this Agreement and to the terms continuing satisfaction of the additional conditions specified in Sections 4 and 5 of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Samples: Sales Agency Agreement (Annaly Mortgage Management Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agenta Manager, as sales agent, and the Sales Agent such Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent applicable Manager on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone submitted to such Manager its order (confirmed promptly by electronic mail) (including any price, time or as otherwise agreed to by the Company and the Sales Agentsize limits or other customary parameters or conditions) from any of the individuals listed as authorized representatives of the Company on Schedule B C hereto (the “Authorized Company Representatives”) to make such sales sales, in a form and manner as mutually agreed to by the Company and such Manager, and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount may sell Shares on any Trading Day through only one of the Managers, but not both. The maximum number of Shares to be sold by the Sales Agent any Manager daily as agreed to by the Sales Agent and shall not in any event not in excess exceed (i) the Maximum Program Amount, as reduced by prior sales of Shares under this Agreement by either Manager, (ii) the amount of Shares available for issuance under the currently effective Registration Statement relating to or (iii) the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified or (iv) the amount of Shares approved for listing on the NYSE and, in each case, disclosed to the Sales Agent such Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent each Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated to be sold by it on any day; provided, however, that the Sales Agent Managers shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Managers shall have no such obligation, in the event that an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent a Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent such Manager reasonably believes it may be deemed to be an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”). On any Trading Day, the Company shall give at least one business day’s prior written notice by telecopy or email to the applicable Manager as to any change of such Manager through which sales of Shares as sales agent will be made. For avoidance of doubt, this Section 3(a)(i) shall not apply to sales solely to employees or security holders of the Company or its Subsidiaries or to a trustee or other person acquiring the Shares for the accounts of such persons in which Xxxxxxx Xxxxx or X.X. Xxxxxx is acting for the Company in a capacity as other than as a Manager under this Agreement.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone any Manager (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent any Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Each of the Managers hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agentsuch Manager.
(iv) The compensation to the Sales Agenteach Manager, as an agent of the Company, for sales of the Shares shall be up at a mutually agreed rate, not to 1.25exceed 2.0% of the gross sales price of the Shares sold by it pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Each Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent such Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first second (2nd) business day that is also a Trading Day following the date on which such sales are made or such other made, in either case unless another date as may shall be agreed to in writing by the Company and the Sales Agent Managers (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Sales Agent a Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent such Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agentsuch Manager’s account, or to the account of the Sales Agentsuch Manager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent such Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each time of an order submitted by the Company pursuant to Section 3(a)(i) hereof, Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(q)), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement, except such representations and warranties that speak as of a specific date, as set forth in Sections 2(d), 2(e) and 2(h)(i). Any obligation of the Sales Agent any Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, except such representations and warranties that speak as of a specific date, as set forth in Sections 2(d), 2(e) and 2(h)(i), to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent a Manager of the proposed terms of such Placement. If the Sales Agentsuch Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent such Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(c) (i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement would exceed the number lesser of Shares (A) the Maximum Program Amount, (B) the amount available for offer and sale under the currently effective Registration Statement, (C) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, or (D) the amount approved for listing on the NYSE and, in each case, disclosed to the Managers in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and notified to the Sales Agent Managers in writing. The Managers shall have no responsibility for maintaining records with respect to the Shares available for sale under the Registration Statement or for determining the aggregate gross sales price, number or minimum price of Shares duly authorized by the Company.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent any Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Partnership agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the CompanyPartnership, the Shares Units on the following terms.
(i) The Shares Units are to be sold on a daily basis or otherwise as shall be agreed to by the Company Partnership and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company Partnership has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule B D hereto (the “Authorized Company Partnership Representatives”) to make such sales and (C) the Company Partnership has satisfied its obligations under Section 8 6 of this Agreement. The Company Partnership will designate the maximum amount number of Units to be sold and the Shares to minimum price per Unit at which such Units may be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount of Units available for issuance under the currently effective Registration Statement relating to and the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, Prospectus or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares Units authorized from time to time to be issued and sold under this Agreement by the CompanyETP LLC’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Units designated on any day; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any SharesUnits, and the Company Partnership acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares Units on behalf of the Company Partnership may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the CompanyPartnership, through any of the Authorized Company Partnership Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares Units if such sales cannot be effected at or above the price designated by the Company Partnership in any such instruction. In addition, the Company Partnership or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Units for any reason and at any time (a “Suspension”); provided, however, that such suspension Suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Units sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares Units on behalf of the CompanyPartnership, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the CompanyPartnership, for sales of the Shares Units shall be up to 1.252% of the gross sales price of the Shares Units sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to timespecified in Schedule E attached hereto. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of 18 connection with such sales, shall constitute the net proceeds to the Company Partnership for such Shares Units (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company Partnership following the close of trading on the NYSE each day in which the Shares Units are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares Units sold on such day, the aggregate Net Proceeds to the Company Partnership, and the aggregate compensation payable by the Company Partnership to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares Units pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third trading day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company Partnership and the Sales Agent Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Units sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company Partnership to the Sales Agent Manager against payment of the Net Proceeds for the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares Units by the Company Partnership or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formunits eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares Units on any Settlement Date, the Company Partnership shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company Partnership and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Partnership Representatives shall be the contact persons for the Company Partnership for all matters related to the settlement of the transfer of the Shares Units through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Date, Representation Date (as defined in Section 5(q4(q)) and Filing Time (as defined in Section 3(e)), the Company Partnership shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares Units on behalf of the Company Partnership shall be subject to the continuing accuracy of the representations and warranties of the Company Partnership herein, to the performance by the Company Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company Partnership wishes to issue and sell the Shares Units other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyPartnership, wishes to accept amended terms, the Sales Agent Manager and the Company Partnership will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ic) Under no circumstances shall the Partnership cause or request the offer or sale of any Units if, after giving effect to the sale of such Units, the aggregate gross sales proceeds or the aggregate number of Shares the Units sold pursuant to this Agreement would exceed the number lesser of Shares (A) the amount set forth in Section 1, (B) the amount available for offer and sale under the currently effective Registration Statement and the Prospectus and (C) the amount authorized from time to time to be issued and sold under this Agreement by the CompanyETP LLC’s board of directors, or a duly authorized committee thereof, and notified the Manager in writing. Under no circumstances shall the Partnership cause or request the offer or sale of any Units at a price lower than the minimum price authorized from time to time by ETP LLC’s board of directors or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing.
(iii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the SharesUnits, it shall promptly notify the other party and sales of the Shares Units under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares Units to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Units or delivery of instructions to offer and sell Units as are set forth herein and as may be mutually agreed upon by the Company Partnership and the Sales AgentManager, sales pursuant to this Agreement may the Partnership shall not request the sale of any Units that would be sold, and the Manager shall not be requested by obligated to sell, (i) during the Company and need not be made by 14 calendar days prior to the Sales Agent during any period in date (each, an “Announcement Date”) on which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company Partnership shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods of operations (each, an “Earnings Announcement”), (ii) at any time from and including an Announcement Date through and including the Representation Date time that occurs in connection with is 24 hours after the Company filing time that the Partnership files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, or (iii) during any other period in which the Partnership is, or could be deemed to be, in possession of material non-public information; provided that, unless otherwise agreed between the Company shall first Partnership and the Manager, for purposes of (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide above, such period shall be deemed to end 24 hours after the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationnext subsequent Filing Time.
(hf) The Company Partnership acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager will be successful in selling the SharesUnits, (B) the Sales Agent Manager will incur no liability or obligation to the Company Partnership or any other person or entity if it does not sell Shares Units for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Units in accordance with the terms of this Agreement, and (C) the Sales Agent Manager shall be under no obligation to purchase Shares Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent Manager and the CompanyPartnership.
Appears in 1 contract
Samples: Equity Distribution Agreement (Energy Transfer Partners, L.P.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares on the following terms.
(i) Shares. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) the Company has instructed the Agent to make such sales and which is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time) (each, a “Trading Day”). On any Trading Day, (B) the Company has instructed may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (telecopy or as otherwise agreed to email, which confirmation will be promptly acknowledged by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount number of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and on such day (in any event not in excess of the amount number available for issuance under the Prospectus and the currently effective Registration Statement relating Statement) and the minimum price per Share at which such Shares may be sold. Notwithstanding the foregoing, no shares may be offered and sold under this Agreement on or after September 30, 2008 unless the Company provides the Agent with written notice to the contrary. Subject to the terms and conditions hereof, the Agent shall use its reasonable efforts to sell all of the Shares so designated by the Company. Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of up of, and the Agent shall not be obligated to $1,500,000,000 of use its reasonable efforts to sell, any Shares as described in (i) at a price lower than the prospectus supplement dated September 20, 2024minimum price therefor designated from time to time, or any Registration Statement filed pursuant to Section 5(g), or (ii) in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement, in each case, by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, the Company or the Agent may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged by the Agent), suspend the offering of the Shares for any reason and at any time; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in the preamble paragraphs of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (writing. In addition, under no circumstances shall any Shares be sold at a “Placement Notice”). Subject price lower than the minimum price therefor designated from time to time by the Company’s board of directors, or a duly authorized committee thereof, and notified to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts in writing. If either party has reason to offer and sell all of the Shares designated; provided, however, believe that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, exemptive provisions set forth in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5101(c)(1) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act (applicable to securities with an average daily trading volume of $1,000,000 that are issued by an issuer whose common equity securities have a public float value of at least $150,000,000) are not satisfied with respect to the Company or the Sales Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Agent reasonably believes it may be deemed an “underwriter” under hereby covenants and agrees not to make any sales of Shares on behalf of the Act in a transaction that is Company other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through Securities Act. The gross sales price of any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to under this Agreement shall be the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf market price for shares of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed ’s Common Stock sold by the Company and Agent under this Agreement on the Sales Agent.
(iv) NYSE at the time of such sale. The compensation payable to the Sales Agent, as an agent of the Company, Agent for sales of the Shares shall be up equal to 1.252.0% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) . The Sales Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. The Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) Agreement setting forth the amount number of the Shares sold on such day, the gross sales prices of the Shares, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) . Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first third business day following the trade date on which such sales are made or such other made, unless another date as may shall be agreed to by the Company and the Sales Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for from the sale of such Shares. Settlement for all such Shares shall be effected by free book-entry delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon against payments by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to the an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons for Agent breaches this Agreement by failing to deliver the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, applicable Net Proceeds on any Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the for Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance delivered by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and will pay the Company will enter into a Terms Agreement setting forth interest based on the terms of effective overnight federal funds rate until such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreementproceeds, the terms of together with such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directorsinterest, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each partyfully paid.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as a sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on a reasonable efforts basis, up to 2,000,000 Shares (the Shares "Maximum Amount") but in no case less than a number of Shares, the gross sales price of which is at least $1,500,000 (the "Minimum Amount") on the following terms.
(i) terms set forth herein. The Shares Shares, up to the Maximum Amount, are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this AgreementManager. The Company will designate and confirm in writing the maximum amount of the Shares to be sold by the Sales Agent daily Manager during a specified period as reasonably agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of such designated Shares up to the Maximum Amount. The Sales Manager shall sell such designated Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than only by means of ordinary brokers’ ' transactions between members of on the NYSE that qualify for delivery of a Prospectus to New York Stock Exchange (the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii"NYSE") Notwithstanding the foregoing, or on any other national stock exchange on which the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction's shares are traded. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, Manager for sales of the Shares shall be up to 1.25at a fixed commission rate of 2% (the "Commission Rate") of the gross sales price of the any Shares sold pursuant to under this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “"Net Proceeds”").
. Notwithstanding the foregoing, the Company may instruct the Sales Manager by telephone (vconfirmed promptly by telecopy) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction; furthermore, the Company shall not authorize the issuance and sale of, and the Sales Manager shall not be obligated to use its reasonable efforts to sell, any Shares at a price lower than the minimum price therefor designated from time to time by the Company's Board of Directors or special committee thereof and notified to the Sales Manager in writing. In addition, the Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the offering of the Shares specifying a date that such suspension shall be effected; provided, however, that such suspension or termination shall not affect or impair the parties' respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. The Company may then revoke the suspension by giving a written notice to the Sales Manager as hereinafter specified (an "Activation Notice"). The Sales Agent Manager may, upon notice to the Company by telephone (confirmed promptly by telecopy), suspend the offering of Shares; provided, however, that such suspension or termination shall not affect or impair the parties' respective obligations with respect to Shares sold hereunder prior to the giving of such notice. The Sales Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) Agreement setting forth the amount number of the Shares sold on such day, the Net Proceeds to the Company and Company, the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) , the total number of Shares sold pursuant to this Agreement and the aggregate gross sales price of Shares sold pursuant to this Agreement. Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first third business day following the date on which such sales are made or (each a "Closing Date"). The amount of proceeds for such other date as may sales to be agreed by delivered to the Company and against the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, receipt of the Shares sold through shall be equal to the aggregate sales prices at which such Shares were sold, net of the Sales Agent Manager's compensation for settlement on such date shall be issued sales and delivered after deduction for any transaction fees imposed by the Company to the Sales Agent against payment of the Net Proceeds for the sale any governmental or self-regulatory organization in respect of such Sharessales. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the Manager's account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, Corporation in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Closing Date, the Company shall (Ai) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Sales Manager breaches this Agreement by failing to deliver proceeds on any Closing Date for Shares delivered by the Company, the Sales Manager will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At effective overnight Federal Funds rate. On each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q))Closing Date, the Company shall be deemed to have affirmed each of their respective representations representation, warranty, covenant and warranties other agreement contained in this Agreement, and on the first and third Monday of each month, to the extent a sale under this Agreement occurred during the immediately preceding 21 day period (each an "Affirmation Date"), the Company shall affirm in writing each representation, warranty, covenant and other agreement contained in this Agreement, unless no sale under this Agreement was made since the last Affirmation Date. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Samples: Sales Agreement (CMS Energy Corp)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Partnership agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the CompanyPartnership, the Shares Units on the following terms.
(i) The Shares Units are to be sold on a daily basis or otherwise as shall be agreed to by the Company Partnership and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company Partnership has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule B hereto (the “Authorized Company Partnership Representatives”) to make such sales and (C) the Company Partnership has satisfied its obligations under Section 8 6 of this Agreement. The Company Partnership will designate the maximum amount number of the Shares Units to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount of Units available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares Units authorized from time to time to be issued and sold under this Agreement by the CompanyETP LLC’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Units designated on any day; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any SharesUnits, and the Company Partnership acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares Units on behalf of the Company Partnership may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the CompanyPartnership, through any of the Authorized Company Partnership Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares Units if such sales cannot be effected at or above the price designated by the Company Partnership in any such instruction. In addition, the Company Partnership or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Units; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Units sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares Units on behalf of the CompanyPartnership, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the CompanyPartnership, for sales of the Shares Units shall be up to 1.252% of the gross sales price of the Shares Units sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to timespecified in Schedule C attached hereto. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company Partnership for such Shares Units (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company Partnership following the close of trading on the NYSE each day in which the Shares Units are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares Units sold on such day, the aggregate Net Proceeds to the Company Partnership, and the aggregate compensation payable by the Company Partnership to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares Units pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third trading day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company Partnership and the Sales Agent Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Units sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company Partnership to the Sales Agent Manager against payment of the Net Proceeds for the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares Units by the Company Partnership or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formunits eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares Units on any Settlement Date, the Company Partnership shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company Partnership and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Partnership Representatives shall be the contact persons for the Company Partnership for all matters related to the settlement of the transfer of the Shares Units through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(q)), the Company Partnership shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares Units on behalf of the Company Partnership shall be subject to the continuing accuracy of the representations and warranties of the Company Partnership herein, to the performance by the Company Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company Partnership wishes to issue and sell the Shares Units other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyPartnership, wishes to accept amended terms, the Sales Agent Manager and the Company Partnership will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the Partnership cause or request the offer or sale of any Units if, after giving effect to the sale of such Units, the aggregate gross sales proceeds or the aggregate number of Shares the Units sold pursuant to this Agreement would exceed the number lesser of Shares (A) the amount set forth in Section 1, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the CompanyETP LLC’s board of directors, or a duly authorized committee thereof, and notified the Manager in writing. Under no circumstances shall the Partnership cause or request the offer or sale of any Units at a price lower than the minimum price authorized from time to time by ETP LLC’s board of directors or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the SharesUnits, it shall promptly notify the other party and sales of the Shares Units under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares Units to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Units or delivery of instructions to offer and sell Units as are set forth herein and as may be mutually agreed upon by the Company Partnership and the Sales AgentManager, offers and sales of Units pursuant to this Agreement may shall not be requested by the Company Partnership and need not be made by the Sales Agent Manager at any time when or during any period in which the Company Partnership is or could be deemed to be, be in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company Partnership acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager will be successful in selling the SharesUnits, (B) the Sales Agent Manager will incur no liability or obligation to the Company Partnership or any other person or entity if it does not sell Shares Units for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Units in accordance with the terms of this Agreement, and (C) the Sales Agent Manager shall be under no obligation to purchase Shares Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent Manager and the CompanyPartnership.
Appears in 1 contract
Samples: Equity Distribution Agreement (Energy Transfer Partners, L.P.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE Nasdaq (other than a day on which the NYSE Nasdaq is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as reasonably agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated. The gross sales of the Shares sold under this Section 3(a) shall be the market price for shares of the Company’s Common Stock sold by the Manager under this Section 3(a) on the Nasdaq at the time of such sale.
(ii) Notwithstanding the foregoing, the Company may instruct the Manager by telephone (confirmed promptly by telecopy) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors and notified to the Manager in writing. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the Sales Agent parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of ordinary brokers’ transactions between members of the Nasdaq that qualify for delivery of a Prospectus to the Nasdaq in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At the Market Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall have no obligation to offer or sell any Shares, be agreed by the Company and the Manager. The Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or a sale of the Shares on behalf of the Company may in the judgment of the Sales Agent would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of not an At the NYSE that qualify for delivery of a Prospectus Market Offering, the Company will provide to the NYSE in accordance with Rule 153 under Manager, at the Act (such transactions are hereinafter referred Manager’s request and upon reasonable advance notice to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (on or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving Settlement Date, the opinions of such notice.
(iii) The Sales Agent hereby covenants counsel, accountants’ letters and agrees not officers’ certificates pursuant to make any sales Section 5 hereof that the Company would be required to provide to the Manager in connection with a sale of the Shares on behalf of the Company, pursuant to this Section 4(a)a Terms Agreement, other than (A) by means of At-the-Market Offerings each dated the Settlement Date, and (B) such other sales of documents and information as the Shares on behalf of the Company in its capacity as agent of the Company as Manager shall be agreed by the Company and the Sales Agentreasonably request.
(iv) The compensation to the Sales AgentManager for sales of the Shares, as an agent of the Company, for sales of the Shares shall be up to 1.254% of the first $15 million of gross sales price of the Shares sold pursuant to this Section 4(a3(a), and 3% of any gross sales price of the Shares sold pursuant to this Section 3(a) or in excess of $15 million, and such lower amount rate of compensation shall not apply when the Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeprincipal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE Nasdaq each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi)effective overnight Federal Funds rate.
(vii) At each Time of Sale, Settlement Date and Representation Filing Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. The Company covenants and agrees with the Manager that (A) with respect to each of the Company’s first three fiscal quarters, the Company shall be obligated to file a quarterly report on Form 10-Q in respect of such quarter and (B) with respect to the Company’s fourth fiscal quarter for year 2007 and for each year thereafter, the Company shall be obligated to file its Annual Report on Form 10-K, which shall set forth the number of the Shares sold through the Manager as agent pursuant to this Section 3(a) in At the Market Offerings, the Net Proceeds to the Company and the compensation paid by the Company with respect to such sales of the Shares pursuant to this Section 3(a). Each date on which the Company shall be obligated to file a quarterly report on Form 10-Q or an annual report on Form 10-K pursuant to this Section 3(a)(vii) shall hereinafter be referred to as a “Filing Date”. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any a Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of the Shares sold pursuant to this Agreement and any Terms Agreement exceed the number set forth in Section 1 or the number of Shares authorized from time to time to be issued and sold shares of the Common Stock available for issuance under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Manager shall calculate on a weekly basis the average daily trading volume (as defined by Rule 100 of Regulation M under the Exchange Act) of the Common Stock and, upon request by the Company, shall promptly provide that information to the Company so long as trading in the Company’s Common Stock continues to occur.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement orand, if applicable, a Terms Agreement.
(e) Any offer, solicitation or which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares shall to be effected purchased by or through only one the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company Shares, and the Sales Agent, sales pursuant time and date (each such time and date being referred to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession herein as a “Time of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings AnnouncementDelivery”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as place of delivery of and payment for the same fiscal period or periodssuch Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data accountants' letters and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter certificates pursuant to this Section 4(g) shall not relieve the Company from any 5 of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person information or entity if it does not sell Shares for any reason other than a failure documents required by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the CompanyManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Medis Technologies LTD)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Partnership agrees to issue and sell through the Sales AgentManagers, as sales agentagents, and the Sales Agent each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the CompanyPartnership, the Shares Units on the following terms.
(i) The Shares Units are to be sold on a daily basis or otherwise as shall be agreed to by the Company Partnership and the Sales Agent such Manager on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a trading day on which the NYSE is scheduled to close prior to its regular weekday closing time), ; (B) the Company Partnership has instructed the Sales Agent such Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule B hereto hereto, as updated from time to time (the “Authorized Company Partnership Representatives”) to make such sales sales; and (C) the Company Partnership has satisfied its obligations under Section 8 6 of this Agreement. The Company Partnership will designate the maximum amount number of the Shares Units to be sold and the minimum price at which Units can be sold by the Sales Agent such Manager daily as agreed to by the Sales Agent such Manager and in any event not in excess of the amount of Units available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent such Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Units designated on any day; provided, however, that the Sales Agent such Manager shall have no obligation to offer or sell any SharesUnits, and the Company Partnership acknowledges and agrees that the Sales Agent such Manager shall have no such obligation, in the event an offer or sale of the Shares Units on behalf of the Company Partnership may in the judgment of the Sales Agent such Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange 1934 Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange 1934 Act or the Sales Agent such Manager reasonably believes it may be deemed an “underwriter” under the 1933 Act or 1933 Act Regulations in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the 1933 Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”). For the avoidance of doubt, the Partnership shall submit instructions to sell Units to only one Manager, if any, on any single trading day.
(ii) Notwithstanding the foregoing, the CompanyPartnership, through any of the Authorized Company Partnership Representatives, may instruct the Sales Agent any Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares Units if such sales cannot be effected at or above the price designated by the Company Partnership in any such instruction. In addition, the Company Partnership or the Sales Agent any Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Units; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Units sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Each Manager hereby covenants and agrees not to make any sales of the Shares Units on behalf of the CompanyPartnership, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership and the Sales Agentsuch Manager.
(iv) The compensation to the Sales Agenteach Manager, as an agent of the CompanyPartnership, for sales of the Shares Units shall be up to 1.252.0% of the gross sales price of the Shares Units sold pursuant to this Section 4(a3(a) or such lower amount as otherwise mutually agreed upon to in writing by the Company Managers and the Sales Agent from time to timePartnership. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company Partnership for such Shares Units (the “Net Proceeds”).
(v) The Sales Agent Each Manager shall provide written confirmation to the Company Partnership following the close of trading on the NYSE each day in which the Shares Units are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares Units sold on such day, the aggregate gross sales proceeds, any transaction fees deducted pursuant to Section 3(a)(iv), the Net Proceeds to the Company Partnership, and the aggregate compensation payable by the Company Partnership to the Sales Agent such Manager with respect to such sales.
(vi) Settlement for sales of the Shares Units pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third Trading Day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company Partnership and the Sales Agent a Manager (each such date, a “Settlement Date”). On each Settlement Date, the Shares Units sold through the Sales Agent a Manager for settlement on such date shall be issued and delivered by the Company Partnership to the Sales Agent such Manager against payment of the Net Proceeds for the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares Units by the Company Partnership or its transfer agent to the Sales Agentsuch Manager’s account, or to the account of the Sales Agentsuch Manager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCommon Units eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares Units on any Settlement Date, the Company Partnership shall (A) indemnify and hold the Sales Agent such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company Partnership; and (B) pay the Sales Agent such Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Partnership Representatives shall be the contact persons for the Company Partnership for all matters related to the settlement of the transfer of the Shares Units through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(p)), the Company Partnership Parties shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, but modified to incorporate the disclosures contained or incorporated by reference in the Registration Statement and the Prospectus, in each case as amended or supplemented as of such date. Any obligation of the Sales Agent any Manager to use its commercially reasonable efforts to sell the Shares Units on behalf of the Company Partnership shall be subject to the continuing accuracy of the representations and warranties of the Company hereinPartnership Parties herein (as modified in the manner described above), to the performance by the Company Partnership Parties of its their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company Partnership wishes to issue and sell the Shares Units other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent a Manager of the proposed terms of such Placement. If the Sales Agentsuch Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyPartnership, wishes to accept amended terms, the Sales Agent such Manager and the Company Partnership Parties will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the Partnership cause or request the offer or sale of any Units if, after giving effect to the sale of such Units, the aggregate gross sales proceeds or the aggregate number of Shares the Units sold pursuant to this Agreement or any Placement would exceed the number lesser of Shares (A) the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the CompanyGeneral Partner’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent each Manager in writing. Under no circumstances shall the Partnership cause or request the offer or sale of any Units at a price lower than the minimum price authorized from time to time by the General Partner’s board of directors or a duly authorized committee thereof.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange 1934 Act are not satisfied with respect to the SharesUnits, it shall promptly notify the other party and sales of the Shares Units under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares Units to or through the Sales Agent a Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Units or delivery of instructions to offer and sell Units as are set forth herein and as may be mutually agreed upon by the Company Partnership and the Sales AgentManagers, offers and sales of Units pursuant to this Agreement may shall not be requested by the Company Partnership and need not be made by the Sales Agent any Manager at any time when or during any period in which the Company Partnership is or could be is deemed to be, be in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company Partnership acknowledges and agrees that (Ai) there can be no assurance that the Sales Agent any Manager will be successful in selling the SharesUnits, (Bii) the Sales Agent no Manager will incur no any liability or obligation to the Company Partnership or any other person or entity if it does not sell Shares Units for any reason other than a failure by the Sales Agent any Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Units in accordance with the terms of this Agreement, and (Ciii) the Sales Agent each Manager shall be under no obligation to purchase Shares Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent such Manager and the CompanyPartnership.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions of this Agreement and on the basis of the representations and warranties herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B C hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount number of the Shares to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the aggregate offering amount available for issuance under the currently then effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number and related Prospectus Supplement and not in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated on any day by the Company; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. .
(iii) In addition, the Company or the Sales Agent may, upon notice Manager may suspend the offer and sale of the Shares pursuant to this Agreement by notifying the other party hereto by telephone (confirmed promptly by electronic mail) to such effect (a “Temporary Suspension Notice”), in which event the obligations of the Company to deliver, or to cause the delivery of, the documents required by Sections 4(l), (m), (n) and (o) hereof, the obligations of the Company to conduct due diligence sessions under Section 4(p) hereof and the other obligations of the Company set forth on Schedule D hereof and the obligations of the Manager under Section 3 shall be suspended until such date (the “Recommencement Date”) as otherwise agreed the party issuing the Temporary Suspension Notice notifies the other party by telephone (confirmed promptly by electronic mail) that it wishes to recommence the offer and sale of the Shares pursuant to this Agreement (the “Recommencement Notice”). The Recommencement Date specified in a Recommencement Notice given by the Company and or Manager shall be subject to the Sales Agent), suspend the offering agreement of the Shares; provided, however, that such other party. A suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Shares, if any, sold hereunder pursuant to this Agreement prior to the giving of such noticeTemporary Suspension Notice, including the obligations of the Company to deliver, or cause the delivery of, the documents required under Sections 4 and 6 hereof and to conduct a due diligence session under Section 4(p) hereof on any date occurring on or before the Settlement Date for any Shares previously sold.
(iiiiv) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager.
(ivv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.252% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount 3(a). Such compensation shall not apply when the Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time principal pursuant to timea Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(vvi) The Sales Agent Manager shall provide written confirmation notice (which notice may be by e-mail) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) 3(a), but in any event prior to the opening of trading on the immediately following trading day, setting forth the amount number of the Shares sold on such day, the Net Proceeds to the Company gross sales price of such Shares, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vivii) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments payment in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. In addition, settlement for sales of the Shares pursuant to this Section 3(a) shall be subject to the provisions set forth in Schedule E hereto. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(a)(vii).
(viiviii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)4(l) hereof), the Company shall be deemed to have affirmed to the Manager that each of their respective representations representation and warranties warranty contained in this AgreementAgreement is true and correct as of such time or date as though made at and as of such time or date. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate gross sales proceeds of the Shares sold pursuant to this Agreement exceed the amount set forth in Section 1 hereof nor shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and notified to the Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Manager (which such request may be by e-mail), the Manager shall promptly calculate and provide in writing to the Company a report setting forth, for the prior week, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales AgentManager, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent Manager during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager will be successful in selling the Shares, (B) the Sales Agent Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares under this Agreement (other than to the extent as may be provided for in any Terms Agreement) for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent Manager and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the ------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on a reasonable efforts basis, up to the Shares Maximum Amount of Stock on the following terms.
terms set forth herein. In the event that the Company engages any other party to provide advice in respect of or otherwise act as sales agent or underwriter for any offering of securities involving a program substantially similar to the Agent's structured equity shelf program contemplated by this Agreement (i) an "Ordinary Brokerage Program"), the Company shall deliver to the Agent a written summary of the material terms and conditions of such Ordinary Brokerage Program at least 15 days prior to the commencement thereof. The Shares are Stock, up to the Maximum Amount, is to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares Stock to be sold by the Sales Agent daily as reasonably agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that designated Stock up to the Sales Agent shall have no obligation to offer or sell any Shares, and Maximum Amount. Notwithstanding the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of foregoing the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy) not to sell the Shares Stock if such sales cannot be effected at or above the price designated by the Company in any such instruction; furthermore, the Company shall not authorize the issuance and sale of, and the Agent shall not be obligated to use its reasonable efforts to sell, any Stock at a price lower than the minimum price therefor designated from time to time by the Company's Board of Directors and notified to the Agent in writing. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy), suspend the offering of the Shares; Stock; provided, however, -------- ------- that such suspension or termination shall not affect or impair the parties’ ' respective obligations with respect to the Shares Stock sold hereunder prior to the giving of such notice.
(iii. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) The Sales Agent hereby covenants of Regulation M under the Exchange Act are not satisfied with respect to the Stock, it shall promptly notify the other party and agrees not to make any sales of the Shares on behalf of the Company, pursuant to Stock under this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Unless otherwise agreed by the Company and the Sales Agent.
, the Agent shall sell the Stock only by means of ordinary brokers' transactions on the American Stock Exchange (iv) the "AMEX"). Unless otherwise agreed to by the Company and the Agent, the Agent shall not solicit or arrange for the solicitation of customer's orders in anticipation of or in connection with such transactions, nor shall it sell short as principal shares of Stock of the Company, except in connection with customary market making activities in the Company's outstanding securities. The Agent shall not engage in any special selling efforts or selling methods relating to the Stock within the meaning of Rule 100 of Regulation M under the Exchange Act. The Agent shall calculate on a weekly basis the average daily trading volume of the Stock. The compensation to the Sales Agent, as an agent of the Company, Agent for sales of the Shares Stock shall be up to 1.25(i) 3.0% of the gross sales price of the Shares first 2,500,000 shares of Stock that may be sold pursuant to this Section 4(aAgreement, (ii) or such lower amount as otherwise mutually agreed upon by 2.5% of the Company gross sales price of the second 2,500,000 shares that may be sold pursuant to this Agreement, and (iii) 2.25% of the Sales Agent from time gross sales price of the remaining 1,065,000 shares that may be sold pursuant to timethis Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares Stock (the “"Net Proceeds”").
(v) . The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE AMEX each day in which the Shares are Stock is sold under this Section 4(a) Agreement setting forth the amount of the Shares Stock sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) . Settlement for sales of the Shares pursuant to this Section 4(a) Stock will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “"Settlement Date”"). On each Settlement Date, the Shares Stock sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such SharesStock. Settlement for all such Shares Stock shall be effected by free delivery of the Shares by the Company or its transfer agent Stock to the Sales Agent’s account, or to the 's account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, Corporation in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares Stock on any Settlement Date, the Company shall (Ai) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Agent breaches this Agreement by failing to deliver proceeds on any Settlement Date for Stock delivered by the Company, the Agent will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) effective overnight Federal Funds rate. At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q))Date, the Company shall be deemed to have affirmed each of their respective representations representation, warranty, covenant and warranties other agreement contained in this Agreement, and on each Filing Date (as defined below), the Company shall affirm in writing each representation, warranty, covenant and other agreement contained in this Agreement. The Company covenants and agrees with the Agent that on or prior to the second business day after the end of each calendar week during which sales of Stock were made by the Agent (each such week a "Reporting Period"), the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) (each a "Filing Date"), which prospectus supplement will set forth, with regard to such Reporting Period, the dates included within the Reporting Period, the amount of Stock sold through the Agent, the Net Proceeds to the Company and the compensation payable by the Company to the Agent with respect to sales of Stock pursuant to this Agreement and (ii) deliver such number of copies of each such prospectus supplement to the AMEX as are required by such Exchange. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company Stock shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Samples: Sales Agency Agreement (Impac Mortgage Holdings Inc)
Sale and Delivery of Securities. (ax) On the basis Xx xxx xxxis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as reasonably agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the designated Shares. The gross sales price of any Shares designated; sold under this Section 3(a) shall be the aggregate market price for shares of the Company's Common Stock sold by the Manager under this Section 3(a) on the NYSE at the time of such sale for such Shares.
(ii) Notwithstanding the foregoing, the Company may, at any time from time to time, instruct the Manager by telephone (confirmed promptly by facsimile) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company's Board of Directors and notified to the Manager in writing. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by facsimile), suspend the offering of the Shares for any reason and at any time; provided, however, that such suspension shall not affect or impair the Sales Agent shall have no obligation parties' respective obligations with respect to offer or sell any Shares, and the Company acknowledges Shares sold hereunder prior to the giving of such notice.
(iii) The Manager hereby covenants and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale not to make any sales of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is Company, pursuant to this Section 3(a), other than (a) by means of ordinary brokers’ ' transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-"At the Market Offerings”).
(ii") Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (Bb) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager. The Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a "block" under Rule 10b-18(a)(5) under the Exchange Act or a "distribution" within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed an "underwriter" under the Act in a transaction that is not an At the Market Offering, the Company will provide to the Manager, at the Manager's request and upon reasonable advance notice to the Company, on or prior to the Settlement Date (as defined below), the opinions of counsel, accountants' letters and officers' certificates pursuant to Section 5 hereof that the Company would be required to provide to the Manager in connection with a sale of Shares pursuant to a Terms Agreement, each dated the Settlement Date, and such other documents and information as the Manager shall reasonably request.
(iv) The compensation to the Sales AgentManager for sales of Shares, as an agent of the Company, for sales of the Shares shall be up to 1.252.0% of the gross sales price of the Shares sold pursuant to this Section 4(a) or 3(a), and such lower amount rate of compensation shall not apply when the Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeprincipal. The remaining proceeds, after further deduction for any transaction fees imposed on the Manager by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “"Net Proceeds”").
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount number of the Shares sold on such day, the gross sales price, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “"Settlement Date”"). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the Manager's account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (Aa) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bb) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under Manager breaches this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified failing to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the ------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, as exclusive sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on a reasonable efforts basis, Shares with a market value of up to $100,000,000 (the Shares "Maximum Amount") on the following terms.
(i) terms set forth -------------- herein. The Shares Shares, up to the Maximum Amount, are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as reasonably agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the designated Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus up to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionMaximum Amount. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, Agent for sales of the Shares shall be up to 1.25at a fixed commission rate of 2.0% of the gross sales price of the Shares any shares sold pursuant to under this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “"Net --- Proceeds”").
. -------- Notwithstanding the foregoing the Company may instruct the Agent by telephone (vconfirmed promptly by telecopy) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction; furthermore, the Company shall not authorize the issuance and sale of, and the Agent shall not be obligated to use its reasonable efforts to sell, any Shares at a price lower than the minimum price therefor designated from time to time by the Company's Board of Directors and to the Agent in writing. In addition, the Company or the Agent may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the parties respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act ("Regulation M") ------------ are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied to the reasonable satisfaction of each party. The Agent shall sell the Shares only by means of ordinary brokers' transactions on the New York Stock Exchange (the "NYSE"). If the Company fails ---- to meet the exemptive requirements set forth in Rule 101(c)(1) of Regulation M, it shall promptly notify the Agent. Sales of the Shares by the Company pursuant to the Agreement shall then cease until such time as the Company is in compliance with such exemptive provisions. The Company or the Agent may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the offering of Shares; provided, however, that such suspension or termination shall not affect or impair the parties' respective obligations with respect to Shares sold hereunder prior to the giving of such notice. The Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) Agreement setting forth the amount number of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) . Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first third business day following the date on which such sales are made or (each a "Closing Date"). The ------------ amount of proceeds for such other date as may sales to be agreed by delivered to the Company and against the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, receipt of the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company equal to the Sales Agent against payment aggregate sales prices at which such Shares were sold, net of the Net Proceeds Agent's compensation for the sale such sales and after deduction for any transaction fees imposed by any governmental or self- regulatory organization in respect of such Sharessales. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the 's account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Closing Date, the Company shall (Ai) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Agent breaches this Agreement by failing to deliver proceeds that have been paid by the purchaser of such Shares on any Closing Date for Shares delivered by the Company for all matters related to in accordance with this Agreement, the settlement Agent shall (i) hold the Company harmless against any loss, claim or damage arising from or as a result of such default by the transfer of Agent and (ii) pay the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At Company interest based on the effective overnight Federal Funds rate. On each Time of Sale, Settlement Closing Date and Representation on each Filing Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective representations representation, warranty, covenant and warranties other agreement contained in this Agreement. On the first and third Tuesday of each month (or, if such Tuesday is not a business day, the next succeeding business day (each such date a "Certificate Date"), the Company shall affirm in ---------------- writing each representation, warranty, covenant and other agreement contained in this Agreement. The Company covenants and agrees with the Agent that on or prior to the second business day after the end of each calendar week during which sales of Shares were made by the Agent (each such week a "Reporting --------- Period"), the Company will (i) file a prospectus supplement with the Commission ------ under the applicable paragraph of Rule 424(b) (each a "Filing Date"), which ----------- prospectus supplement will set forth, with regard to such Reporting Period, the dates included within the Reporting Period, the amount of Shares sold through the Agent, the Net Proceeds to the Company and the compensation payable by the Company to the Agent with respect to sales of Shares pursuant to this Agreement and (ii) deliver such number of copies of each such prospectus supplement to the NYSE as are required by such Exchange. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Samples: Sales Agency Agreement (PPL Corp)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.251.5% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon determined by the Company and the Sales Agent from time to time. table on Schedule C. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi4(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales AgentManager, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent Manager except during the period that begins after the filing of a quarterly report on Form 10-Q or an annual report on Form 10-K as of and within the period required by the Exchange Act (each such date, a “Filing Date”); provided that no such period for sales begin until the Manager is in receipt of all required deliverables as specified in Sections 5(q), 5(r), 5(s), 5(t), 5(u), 6(b), 6(c), 6(d) and 8(e) and has satisfactorily completed its diligence pursuant to Section 5(v) and ends, for all periods 3 business days prior to the declaration of the Company’s regular quarterly dividend for the next succeeding fiscal quarter. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Manager, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager will be successful in selling the Shares, (B) the Sales Agent Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent Manager and the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Chimera Investment Corp)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell Securities from time to time through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares Securities on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by Each time that the Company and the Sales Agent wishes to sell Securities on any day that (A) is a trading day for the NYSE Nasdaq Global Select Market (a “Trading Day”) (other than a day Trading Day on which the NYSE Nasdaq Global Select Market is scheduled to close prior to its regular weekday closing time) pursuant to this Agreement (each, a “Placement”), (B) the Company has instructed will instruct the Sales Agent by telephone of the parameters in accordance with which it desires Securities to be sold, which shall at a minimum include the number of Securities to be offered, the time period during which sales are requested to be made, the minimum price below which sales may not be made and any limitation on the number of Securities that may be sold in any one day (confirmed promptly by electronic maila “Placement Notice”). The Sales Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same business day (or as otherwise agreed defined below) on which such Placement Notice is delivered to by the Company and the Sales Agent) from any , issue to the Company a notice by email addressed to all of the individuals listed as authorized representatives of the Company on Schedule B A hereto (the “Authorized Company Representatives”) to make such sales confirming all of the parameters of the Placement. The Placement Notice shall be effective upon receipt by any of the Authorized Representatives of the email notice from the Sales Agent, unless and until (Ci) the entire amount of the Securities covered by the Placement Notice have been sold, (ii) in accordance with Section 2(a)(ii) hereof, the Company or the Sales Agent suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) this Agreement has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance been terminated under the currently effective Registration Statement relating to the sale provisions of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)9. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Securities designated in the Placement Notice; provided, however, that the Sales Agent shall have no obligation to offer or sell any SharesSecurities, and the Company acknowledges and agrees that the Sales Agent may, but shall have no such obligation, obligation in the event an offer or sale of the Shares Securities on behalf of the Company may Company, in the judgment of the Sales Agent constitute Agent, constitutes the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act 1934 Act, or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act 1934 Act, or the Sales Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is other than (A) by means of ordinary brokers’ transactions between members of the NYSE Nasdaq Global Select Market that qualify for delivery of a Prospectus to the NYSE Nasdaq Global Select Market in accordance with Rule 153 under the 1933 Act or (such B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the transactions described in (A) and (B) are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agentmail from such party), suspend the offering of the Shares; Securities pursuant to this Agreement or suspend or terminate a previously issued Placement Notice; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares Securities sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares Securities on behalf of the Company, pursuant to this Section 4(a2(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares Securities on behalf of the Company in its capacity as agent of the Company or as principal, in each case as shall be agreed by the Company and the Sales Agent.
(iv) The gross sales price of any Securities sold pursuant to this Agreement by the Sales Agent, as an agent of the Company, shall be the market price prevailing at the time of sale for Securities sold by the Sales Agent on the Nasdaq Global Select Market or otherwise, at prices related to prevailing market prices or, subject to specific instructions of the Company, at negotiated prices. The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares Securities shall be at a mutually agreed rate up to 1.252.0% of the gross sales price of the Shares Securities sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and 2(a). The foregoing rate of compensation shall not apply when the Sales Agent from acts as principal, in which case the Company may sell Securities to the Sales Agent as principal at a price agreed upon at the relevant applicable time pursuant to timea separate agreement (each, a “Terms Agreement”) relating to such sale. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares Securities (the “Net Proceeds”). The Sales Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be made.
(v) The Sales Agent shall provide written confirmation to the Company as soon as practicable following the close of trading on the NYSE Nasdaq Global Select Market each day in on which the Shares Securities are sold under this Section 4(a2(a) setting forth the aggregate amount of the Shares Securities sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares Securities pursuant to this Section 4(a2(a) will occur on the first business day second Trading Day following the date on which such sales are made or such other made, unless another date as may shall be agreed upon by the Company and the Sales Agent (provided that, if such Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day) (each such date, a “Settlement Date”). As used herein, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Securities sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company (through its transfer agent) to the Sales Agent against payment of the Net Proceeds for the sale of such SharesSecurities. Settlement for all such Shares Securities shall be effected by free delivery of electronically transferring the Shares Securities by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company DTC through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties heretoCompany and the Sales Agent, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, Company (or its transfer agent (if applicable), agent) shall default on its obligation to deliver the Shares Securities through the Sales Agent on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Sales Agent in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares Securities through DWAC for purposes of this Section 4(a)(vi2(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares Securities on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company hereinWhiteHorse Entities, to the performance by the Company WhiteHorse Entities of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 3 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares Securities other than as set forth in Section 4(a2(a) of this Agreement (each, a “Placement”)Agreement, it will may elect, in its sole discretion, to notify the Sales Agent of the proposed terms of such Placementsale. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. For avoidance of doubt, nothing contained in this Agreement shall be construed to require the Company to engage the Sales Agent in connection with the offer and sale of any of its securities, including shares of the Common Stock, whether in connection with an underwritten offering or otherwise.
(ic) In the event the Company engages the Sales Agent for a sale of Securities that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the 1934 Act, or a “distribution,” within the meaning of Rule 100 of Regulation M under the 1934 Act, the Company and the Sales Agent will agree to compensation that is customary for the Sales Agent with respect to such transactions.
(d) Under no circumstances shall the Company cause or request the offer or sale of any Securities if, after giving effect to the sale of such Securities, the aggregate gross sales proceeds or the aggregate number of Shares the Securities sold pursuant to this Agreement would exceed the number of Shares authorized from time to time to be issued amount available for offer and sold sale under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(iie) If either any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange 1934 Act are not satisfied with respect to the SharesSecurities, it shall promptly notify the other party parties and sales of the Shares Securities under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Sales Agent (which such request may be by electronic mail), the Sales Agent shall promptly calculate and provide in writing to the Company a report setting forth, for the prior week, the average daily trading volume (as defined in Rule 100 of Regulation M under the 1934 Act) of the Common Stock.
(df) Each sale of the Shares Securities to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement. The commitment of the Sales Agent to purchase the Securities pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the parties herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Securities to be purchased by the Sales Agent pursuant thereto, the price to be paid to the Company for such Securities, any provisions relating to rights of, and default by, underwriters acting together with the Sales Agent in the reoffering of the Securities, any provisions relating to the granting of an option to purchase additional Securities for the purpose of covering over-allotments, and the time and date (each such time and date being referred to herein as a “Date of Delivery”) and place of delivery of and payment for such Securities. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 5 hereof and any other information or documents required by the Sales Agent.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(fg) Subject to the such further limitations on offers and sales of Securities or delivery of instructions to offer and sell Securities as are set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, Agent offers and sales of Securities pursuant to this Agreement may shall not be requested by the Company and need not be made by the Sales Agent at any time when or during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the SharesSecurities, (B) the Sales Agent will not incur no liability or obligation to the Company or any other person or entity if it such Sales Agent does not sell Shares Securities for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Securities in accordance with the terms of this Agreement, Agreement and (C) the Sales Agent shall not be under no any obligation to purchase Shares Securities on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent and the Company. For purposes of clarification, the Sales Agent shall only be deemed to be acting as a sales agent under this Agreement during the period beginning with the delivery of a Placement Notice from the Company to the Sales Agent and ending upon the suspension or termination of such Placement Notice.
(i) The Company agrees that, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Securities or sales of Common Stock pursuant to any At the Market Offering (as defined herein and within the meaning of Rule 415(a)(4) under the 1933 Act) shall only be effected by or through the Sales Agent. Notwithstanding the foregoing or anything to the contrary in this Agreement, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Securities or sales of Common Stock that do not constitute an At the Market Offering (as defined herein and within the meaning of Rule 415(a)(4) under the 1933 Act), including any underwritten offering or private placement transaction exempt from the requirements of the 1933 Act, may be effected by the Company by or through any person or entity in the Company’s sole discretion.
Appears in 1 contract
Samples: Equity Distribution Agreement (WhiteHorse Finance, Inc.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Partnership agrees to issue and sell through the Sales AgentManagers, as sales agentagents, and the Sales Agent each Manager agrees to use its commercially reasonable efforts to sell, as sales agent agents for the CompanyPartnership, the Shares Units on the following terms.
(i) The Shares Units are to be sold on a daily basis or otherwise as shall be agreed to by the Company Partnership and the Sales Agent such Manager on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company Partnership has instructed the Sales Agent such Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule B D hereto (the “Authorized Company Partnership Representatives”) to make such sales and (C) the Company Partnership has satisfied its obligations under Section 8 6 of this Agreement. The Company Partnership will designate the maximum amount number of the Shares Units (which may be expressed as a percentage of volume) to be sold and the minimum price per Unit at which such Units may be sold by the Sales Agent such Manager daily as agreed to by the Sales Agent such Manager and in any event not in excess of the amount of Units available for issuance under the currently effective Registration Statement relating to and the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, Prospectus or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares Units authorized from time to time to be issued and sold under this Agreement by the CompanyGeneral Partner’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent such Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent such Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Units designated on any day; provided, however, that the Sales Agent such Manager shall have no obligation to offer or sell any SharesUnits, and the Company Partnership acknowledges and agrees that the Sales Agent such Manager shall have no such obligation, in the event an offer or sale of the Shares Units on behalf of the Company Partnership may in the judgment of the Sales Agent such Manager constitute the sale of a “block” under Rule 10b-18(a)(510b‑18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent such Manager reasonably believes it may be deemed an “underwriter” under the Securities Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”)Securities Act.
(ii) Notwithstanding the foregoing, the CompanyPartnership, through any of the Authorized Company Partnership Representatives, may instruct the Sales Agent such Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares Units if such sales cannot be effected at or above the price designated by the Company Partnership in any such instruction. In addition, the Company Partnership or the Sales Agent such Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Units for any reason and at any time (a “Suspension”); provided, however, that such suspension Suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Units sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Each Manager hereby covenants and agrees not to make any sales of the Shares Units on behalf of the CompanyPartnership, pursuant to this Section 4(a3(a), other than (A) by means of At-the-Market Offerings and any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Securities Act, including, without limitation, sales made directly on the NYSE, on any other existing trading market for the Common Units or to or through a market maker, (B) by any other method permitted by law, including, without limitation, in privately negotiated transactions, or (C) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership and the Sales Agentsuch Manager.
(iv) The compensation to the Sales Agenteach Manager, as an agent of the CompanyPartnership, for sales of the Shares Units shall be up to 1.252% of the gross sales price of the Shares Units sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon to in writing by the Company such Manager(s) and the Sales Agent from time to timePartnership. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company Partnership for such Shares Units (the “Net Proceeds”).
(v) The Sales Agent Each Manager acting as a sales agent hereunder shall provide written confirmation (which may be by facsimile or electronic email) to the Company Partnership following the close of trading on the NYSE each day in which the Shares Units are sold under this Section 4(a) 3(a), setting forth (i) the amount aggregate number of the Shares Units sold on such day, (ii) the aggregate gross sales proceeds and Net Proceeds to the Company Partnership from the sale of the Units on such day, and (iii) the aggregate compensation payable by the Company Partnership to the Sales Agent such Manager with respect to such sales. At each Manager’s election and subject to the prior written consent of the Partnership, which consent shall not be unreasonably withheld, delayed or conditioned, such compensation shall be set forth and invoiced in periodic statements from such Manager to the Partnership, with payment to be made by the Partnership promptly after its receipt thereof.
(vi) Settlement for sales of the Shares Units pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third Trading Day is not a business day (as defined below), then settlement will occur on the next succeeding Trading Day that is also a business day), unless another date as may shall be agreed upon by the Company Partnership and the Sales Agent such Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Units sold through the Sales Agent such Manager for settlement on such date shall be issued and delivered by the Company Partnership to the Sales Agent such Manager against payment of the Net Proceeds for the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares Units by the Company Partnership or its transfer agent to the Sales Agentsuch Manager’s account, or to the account of the Sales Agentsuch Manager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formUnits eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares Units on any Settlement Date, the Company Partnership shall (A) indemnify and hold the Sales Agent such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company Partnership and (B) pay the Sales Agent such Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Partnership Representatives shall be the contact persons for the Company Partnership for all matters related to the settlement of the transfer of the Shares Units through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(q)), the Company Partnership shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent any Manager to use its commercially reasonable efforts to sell the Shares Units on behalf of the Company Partnership shall be subject to the continuing accuracy of the representations and warranties of the Company Partnership herein, to the performance by the Company Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company Partnership wishes to issue and sell the Shares Units other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent a Manager of the proposed terms of such Placement. If the Sales Agentsuch Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyPartnership, wishes to accept amended terms, the Sales Agent such Manager and the Company Partnership will enter into a Terms Agreement setting forth the terms of such Placement, and such Terms Agreement will not be binding on the Partnership or such Manager unless and until the Partnership and such Manager have executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the Partnership cause or request the offer or sale of any Units if, after giving effect to the sale of such Units, the aggregate number of Shares sold gross sales proceeds pursuant to this Agreement would exceed the number lesser of Shares (A) the amount set forth in Section 1, (B) the amount available for offer and sale under the currently effective Registration Statement and the Prospectus and (C) the amount authorized from time to time to be issued and sold under this Agreement by the CompanyGeneral Partner’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Managers in writing. Under no circumstances shall the Partnership cause or request the offer or sale of any Units at a price lower than the minimum price authorized from time to time by the General Partner’s board of directors or a duly authorized committee thereof, and notified to the Managers in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the SharesUnits, it shall promptly notify the other party and sales of the Shares Units under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares Units to or through the Sales Agent any Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Units or delivery of instructions to offer and sell Units as are set forth herein and as may be mutually agreed upon by the Company Partnership and any Manager, the Sales AgentPartnership shall not request the sale of any Units that would be sold, sales pursuant and no Manager shall be obligated to this Agreement may not be requested by sell, (i) during the Company and need not be made by 14 calendar days prior to the Sales Agent during any period in date (each, an “Announcement Date”) on which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company Partnership shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods of operations (each, an “Earnings Announcement”), (ii) at any time from and including an Announcement Date through and including the Representation Date time that occurs in connection with is 24 hours after the Company filing time that the Partnership files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, or (iii) during any other period in which the Partnership is, or could be deemed to be, in possession of material non-public information; provided that, unless otherwise agreed between the Company shall first Partnership and any Manager, for purposes of (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide above, such period shall be deemed to end 24 hours after the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationnext subsequent Filing Time.
(hf) The Company Partnership acknowledges and agrees that (A) there can be no assurance that the Sales Agent any Manager will be successful in selling the SharesUnits, (B) the Sales Agent no Manager will incur no any liability or obligation to the Company Partnership or any other person or entity if it such Manager does not sell Shares Units for any reason other than a failure by the Sales Agent such Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Units in accordance with the terms of this Agreement, and (C) the Sales Agent each Manager shall be under no obligation to purchase Shares Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent such Manager and the CompanyPartnership.
Appears in 1 contract
Samples: Equity Distribution Agreement (Energy Transfer Equity, L.P.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B D hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 5 of this Agreement. The Company will designate the maximum amount number of the Shares to be sold by the Sales Agent Manager daily or as otherwise agreed to by the Sales Agent Manager and the Company and in any event not in excess of the amount of Shares available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated on any day; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by mail from the Company and the Sales AgentCompany) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction, which price shall not be below the par value of the Common Stock. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agentmail from such party), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.252% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company as soon as practicable following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third trading day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company and the Sales Agent Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 6 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement or as set forth in Section 3(a) of any Alternative Equity Distribution Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ii) In the event the Company engages the Manager for a sale of Shares that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act, the Company and the Manager will agree to compensation that is customary for the Manager with respect to such transactions.
(i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement and any Alternative Equity Distribution Agreement would exceed the number lesser of Shares (A) the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement and any Alternative Equity Distribution Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and notified to the Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Alternative Equity Sales Distribution Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Manager (which such request may be by electronic mail), the Manager shall promptly calculate and provide in writing to the Company a report setting forth, for the prior week, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(d) Each sale of the Shares to or through the Sales Agent Manager or any Alternative Manager, as applicable, shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement, or the respective Alternative Equity Distribution Agreement or, if applicable, an Alternative Terms Agreement, as applicable.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Shares or delivery of instructions to offer and sell Shares as are set forth herein herein, or in any Alternative Equity Distribution Agreement, and as may be mutually agreed upon by the Company and the Sales AgentManager or any Alternative Manager, as applicable, offers and sales of Shares pursuant to this Agreement may or any Alternative Equity Distribution Agreement, as applicable, shall not be requested by the Company and need not be made by the Sales Agent Manager or any Alternative Manager, as applicable, at any time when or during any period (i) in which the Company is or could be deemed to be, be in possession of material non-public information.
, (gii) Notwithstanding any other provision the Company’s xxxxxxx xxxxxxx policy, as then in effect, would prohibit the purchases or sales of the Company’s Common Stock by its officer or directors; provided that, unless the Company provides prior written notice to the Manager otherwise, for purposes of this Agreementclause (ii), such period shall be deemed to end on the date that is two (2) days after the date on which the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for of operations, or (iii) from and including the date on which the Company shall issue a fiscal period press release containing, or periods shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the Representation Date time that occurs in connection with is 24 hours after the time that the Company filing files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first except, for purposes of this clause (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”iii), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent accordance with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with protocol regarding the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationDistribution Agreements.
(hf) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager or any Alternative Manager will be successful in selling the Shares, (B) neither the Sales Agent Manager nor any Alternative Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Manager or any Alternative Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement or any Alternative Equity Distribution Agreement, as applicable, and (C) neither the Sales Agent Manager nor any Alternative Manager shall be under no any obligation to purchase Shares on a principal basis pursuant to this Agreement or any Alternative Equity Distribution Agreement, as applicable, except as otherwise specifically agreed in writing by the Sales Agent Manager and the Company or any Alternative Manager and the Company, as applicable.
(g) The Company agrees that, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Shares or sales of Common Stock in Rule 415(a)(4) Offerings shall only be effected by or through the Manager or an Alternative Manager, but in no event by more than one Manager on any single given day, and the Company shall in no event request that the Manager or any Alternative Manager sell Shares on the same day.
Appears in 1 contract
Samples: Equity Distribution Agreement (Omega Healthcare Investors Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentAgents, as sales agentagents, and the Sales each Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales such Agent on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales such Agent by electronic mail or by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B C hereto (as may be amended from time to time by the Company by written notice to the Agents) (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount number of the Shares to be sold by the Sales such Agent daily as agreed to by the Sales such Agent and in any event not in excess of the amount of Shares available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales such Agent in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated on any day; provided, however, that the Sales such Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees the Operating Partnership acknowledge and agree that the Sales such Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales such Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales such Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales such Agent by electronic mail or by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales such Agent may, upon notice to the other party hereto by electronic mail or by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Each Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and such Agent. Further, each Agent hereby covenants and agrees not to make any sale of the Sales AgentShares not in accordance with the applicable instructions provided by the Company.
(iv) The compensation to the Sales each Agent, as an agent of the Company, for sales of the Shares shall be up to 1.251.5% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Each Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares sold on such day, the gross sales price per share, the aggregate gross sales proceeds, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales such Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first business day second Trading Day following the date on which such sales are made or (provided that, if such other second Trading Day is not a business day (as defined below), then settlement will occur on the next succeeding Trading Day that is also a business day), unless another date as may shall be agreed upon by the Company and the Sales such Agent (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Sales such Agent for settlement on such date shall be issued and delivered by the Company to the Sales such Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales such Agent’s account, or to the account of the Sales such Agent’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company and the Operating Partnership shall (A) indemnify and hold the Sales such Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales such Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(p)), the Company and the Operating Partnership shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement, other than those contained in Sections 2(e) and 2(i) above. Any obligation of the Sales any Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of its their obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(iviii) The Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one Agent on any single given day, but in no event by more than one, and the Company shall in no event request that multiple Agents sell Shares on the same day.
(b) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales an Agent of the proposed terms of such Placement. If the Sales such Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales such Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement would exceed the number lesser of Shares (A) the amount set forth in Section 1, (B) the amount then available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued offered and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Agents in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and notified to the Agents in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales any Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Shares or delivery of instructions to offer and sell Shares as are set forth herein and as may be mutually agreed upon by the Company and the Sales any Agent, offers and sales of Shares pursuant to this Agreement may shall not be requested by the Company and need not be made by the Sales such Agent at any time when or during any period in which the Company’s ixxxxxx xxxxxxx or similar policy, as it exists on the date of this Agreement, would prohibit the purchase or sale of Preferred Stock by persons subject to such policy, or during any other period in which the Company is is, or could be deemed to be, in possession of material non-public informationinformation with respect to the Company.
(gf) Notwithstanding any other provision of this Agreement, The Company and the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from Operating Partnership acknowledge and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (Ai) there can be no assurance that the Sales any Agent will be successful in selling the Shares, (Bii) the Sales no Agent will incur no any liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales such Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (Ciii) the Sales each Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales such Agent and the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Global Net Lease, Inc.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to contained and the other terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) Shares. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE New York Stock Exchange (the "NYSE") (other than a day on which trading on the NYSE is scheduled to close prior to its regular weekday closing time)) from the date hereof to the earlier of May 15, (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company 2003, and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 termination of this AgreementAgreement pursuant to Section 6 hereof. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as reasonably agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares (as described defined in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g2(a), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell designated Shares. The gross sales price of any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to under this Agreement shall be the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf market price for shares of the Company, pursuant to this Section 4(a), other than (A) by means 's Common Stock sold on the NYSE at the time of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) sale. The compensation to the Sales Agent, as an agent of the Company, Agent for sales of the Shares shall be up to 1.25at a fixed commission rate of 2% of the gross sales price of the any Shares sold pursuant to under this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “"Net Proceeds”").
. Notwithstanding the foregoing, the Company may instruct the Agent by telephone (vconfirmed promptly by telecopy) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Agent shall not be obligated to use its reasonable efforts to sell, any Shares at a price lower than the minimum price therefor designated from time to time by the Company's Board of Directors and provided to the Agent in writing. The Agent hereby agrees not to make any sales of Shares on behalf of the Cxxxxxx other than by means of ordinary brokers' transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Securities Act (as defined below). In addition, the Company or the Agent may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the sale of the Shares. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M ("Regulation M") under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the "Exchange Act") are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied to the reasonable satisfaction of each party. If the Company fails to meet the exemptive requirements set forth in Rule 101(c)(1) of Regulation M, it shall promptly notify the Agent. Sales of the Shares by the Company pursuant to the Agreement shall then cease until such time as the Company is in compliance with such exemptive provisions. The Company or the Agent may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the sale of the Shares. Any suspension or termination effected by either party under this Agreement shall not affect or impair the parties' respective obligations with respect to Shares sold hereunder prior to the giving of such notice. The Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) Agreement setting forth the amount number of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent with respect to such sales.
. The Company shall open and maintain a trading account (vithe "Trading Account") Settlement for sales at a clearing agent designated by the Agent to facilitate the transactions contemplated by this Agreement. The Net Proceeds from the sale of the Shares pursuant to this Section 4(a) will occur shall be available in the Trading Account on the first third business day following the date on which such sales are made (or such other date day as may be agreed by is industry practice for regular-way trading) following each sale of the Company and the Sales Agent Shares (each such dateeach, a “Settlement "Closing Date”"). On each Settlement Date, The Company shall effect the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the applicable number of Shares to an account designated by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, Agent at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) on or by such other means before the Closing Date of delivery as may be mutually agreed upon by the parties hereto, which in all cases each sale hereunder. The Agent's compensation shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered withheld from the sales proceeds on each Settlement Date and shall be paid to the account designated by the CompanyAgent. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Closing Date, the Company shall (Ai) indemnify and hold the Sales Agent in respect of such sale harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Agent breaches this Agreement by failing to deliver Net Proceeds that have been paid by the purchaser of such Shares on any Closing Date for Shares delivered by the Company for all matters related to in accordance with this Agreement, the settlement Agent shall (i) hold the Company harmless against any loss, claim or damage arising from or as a result of such default by the transfer of Agent and (ii) pay the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At Company interest based on the effective overnight Federal Funds rate. On each Time of SaleClosing Date, Settlement Date and Representation on each Filing Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective representations representation, warranty, covenant and warranties other agreement contained in this Agreement. The Company covenants and agrees with the Agent that on or prior to the second business day after any date on which the Company shall file a Quarterly Report on Form 10-Q in respect of any quarter in which sales of Shares of Common Stock were made by the Agent under this Agreement or by UBS Warburg LLC ("UBS"), under a sales agency agreement, dated as of May 15, 2002 (the "UBS Sales Agency Agreement"), between the Company and UBS (each such date, a "Filing Date"), the Company will (i) affirm in writing each representation, warranty, covenant and other agreement contained in this Agreement, (ii) file a prospectus supplement (each, a "Prospectus Supplement") with the Securities and Exchange Commission (the "Commission") under the applicable paragraph of Rule 424(b) under the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively, the "Securities Act"), which Prospectus Supplement will set forth, with regard to such quarter, the number of Shares of Common Stock sold through the Agent under this Agreement and through UBS under the UBS Sales Agency Agreement, the Net Proceeds to the Company and the compensation paid by the Company with respect to sales of Shares of Common Stock pursuant to this Agreement and the UBS Sales Agency Agreement and (iii) deliver such number of copies of each such Prospectus Supplement to the NYSE as is required by such exchange. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional covenants and conditions specified in Section 8 Sections 3 and 5 of this Agreement.
(i) If . The Company and the Agent each acknowledge that under the terms and conditions of the UBS Sales Agency Agreement, the Company wishes has agreed to issue and sell the Shares other than through UBS, as set forth in Section 4(a) an additional sales agent, up to 4,000,000 shares of this Agreement (eachits Common Stock, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for less any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of and conditions described in this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE Nasdaq (other than a day on which the NYSE Nasdaq is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as reasonably agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated. The gross sales of the Shares sold under this Section 3(a) shall be the market price for Shares of the Company’s Common Stock sold by the Manager under this Section 3(a) on the Nasdaq at the time of such sale.
(ii) Notwithstanding the foregoing, the Company may instruct the Manager by telephone (confirmed promptly by telecopy) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s board of directors and notified to the Manager in writing. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the Sales Agent parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of ordinary brokers’ transactions between members of the Nasdaq that qualify for delivery of a Prospectus to the Nasdaq in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At the Market Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall have no obligation to offer or sell any Shares, be agreed by the Company and the Manager. The Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or a sale of the Shares on behalf of the Company may in the judgment of the Sales Agent would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means not an At the Market Offering, the Manager may request, as a condition of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus such sale and upon reasonable advance notice to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (on or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving Settlement Date, the opinions of such notice.
(iii) The Sales Agent hereby covenants counsel, accountants’ letters and agrees not officers’ certificates pursuant to make any sales Section 5 hereof that the Company would be required to provide to the Manager in connection with a sale of the Shares on behalf of the Company, pursuant to this Section 4(a)a Terms Agreement, other than (A) by means of At-the-Market Offerings each dated the Settlement Date, and (B) such other sales of documents and information as the Shares on behalf of the Company in its capacity as agent of the Company as Manager shall be agreed by the Company and the Sales Agentreasonably request.
(iv) The compensation to the Sales AgentManager for sales of the Shares, as an agent of the Company, for sales of the Shares shall be up to 1.254% of the first $15 million of gross sales price of the Shares sold pursuant to this Section 4(a3(a), and 3% of any gross sales price of the Shares sold pursuant to this Section 3(a) or in excess of $15 million, and such lower amount rate of compensation shall not apply when the Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeprincipal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE Nasdaq each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi)effective overnight Federal Funds rate.
(vii) At each Time of Sale, Settlement Date and Representation Filing Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. The Company covenants and agrees with the Manager that (A) with respect to each of the Company’s first three fiscal quarters, on or prior to the date on which the Company shall be obligated to file a quarterly report on Form 10-Q in respect of such quarter and (B) with respect to the Company’s fourth fiscal quarter for year 2005 and for each year thereafter, on or prior to the date on which the Company shall be obligated to file its annual report on Form 10-K (each such date, a “Filing Date”), the Company will make such filing setting forth, with regard to such quarter, the number of the Shares sold through the Manager as agent pursuant to this Section 3(a) in At the Market Offerings, the Net Proceeds to the Company and the compensation paid by the Company with respect to such sales of the Shares pursuant to this Section 3(a). Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any a Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of the Shares sold pursuant to this Agreement and any Terms Agreement exceed the number set forth in Section 1 or the number of Shares authorized from time to time to be issued and sold shares of the Common Stock available for issuance under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Manager shall calculate on a weekly basis the average daily trading volume (as defined by Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement orand, if applicable, a Terms Agreement.
(e) Any offer, solicitation or which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares shall to be effected purchased by or through only one the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company Shares, and the Sales Agent, sales pursuant time and date (each such time and date being referred to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession herein as a “Time of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings AnnouncementDelivery”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as place of delivery of and payment for the same fiscal period or periodssuch Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data accountants’ letters and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter certificates pursuant to this Section 4(g) shall not relieve the Company from any 5 of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person information or entity if it does not sell Shares for any reason other than a failure documents required by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the CompanyManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Distributed Energy Systems Corp)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Fund agrees to issue and sell through the Sales AgentUnderwriter, as sales agentexclusive underwriter for the sale of Common Shares pursuant to this Agreement or any arrangement similar to that contemplated by this Agreement, and the Sales Agent Underwriter agrees to use its commercially reasonable efforts to sell, as sales agent underwriter for the CompanyFund, on a "best efforts" basis, up to the Maximum Amount of Common Shares during the term of this Agreement in accordance with the 1933 Act, the Shares on 1940 Act, the following terms.
Securities Exchange Act of 1934 (i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company "1934 Act"), the Conduct Rules of the NASD and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; set forth herein; provided, however, that the Sales Agent Underwriter shall have no obligation not be deemed to offer or sell any Shares, and be in violation of this sentence if such violation is caused by the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale failure of the Shares on behalf Fund or the Investment Adviser to comply with its agreements and representations contained herein. In connection with the performance of its obligations under this Agreement, the Underwriter may, with the approval of the Company may in Fund, use the judgment services of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5selected broker-dealers ("Selected Dealers") under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between who are members of the NYSE that qualify for delivery of NASD. The arrangements, if any, between the Underwriter and any Selected Dealer shall be set forth in a Prospectus Selected Dealer Agreement in a form attached hereto as Exhibit A, unless the Fund shall consent to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”)other arrangements.
(iib) Notwithstanding The Fund shall calculate the foregoing, the Company, through any Current Net Asset Value (as such term is used in Section 23(b) of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail1940 Act) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected per Common Share at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares shall be up to 1.25% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent shall provide written confirmation to the Company following the close of trading business on Thursday eacx xxxx xr if any Thursday is not a business day the NYSE each business day in which immediately preceding such Thursday (the Shares are sold under this Section 4(a"Determination Date") setting forth and shall notify the amount Underwriter of the Shares sold on result of such daycalculation by 2:00 p.m., the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur New York City time, on the first business day following the date Determination Date each week. "Sales Price" in this Agreement means the price equal to the Current Net Asset Value per Common Share as of 5:30 p.m., New York City time, on the Determination Date of each week, which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date price shall be issued and delivered by effective until 5:30 p.m., New York City time, on the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement following Determination Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, subject to Section 3.1(h), as sales agentexclusive Agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on a best efforts basis, up to the Shares Maximum Amount of Stock during a maximum of 52 Sales Periods (as hereinafter defined) on the following terms.
terms set forth herein; provided, however, that the Company shall not be obligated to issue and sell, and the Agent shall not be obligated to use its best efforts to sell, Stock if the Stock is then trading on the Trading Market (ias defined below) at a price (after deduction of the Agent's Compensation (as defined below)) lower than the Minimum Price (as defined below). "Minimum Price" means the price per share determined by the Company from time to time in its sole discretion and which is communicated to the Agent by telephone and confirmed promptly by telecopy, each such price to become effective upon receipt of such notice by the Agent and to apply to sales made thereafter. The Shares are Company shall open and maintain a trading account (the "Trading Account") at a clearing agent designated by the Agent (the "Clearing Agent") to facilitate the transactions contemplated by this Agreement. The Agent shall effect any sales of the Stock from such account. The Company shall deliver (or cause its transfer agent to deliver) shares of the Stock to such account to settle any such sales. Proceeds from such sales shall be collected in the Trading Account. The Stock, up to the Maximum Amount, is to be sold during one or more periods each consisting of five consecutive calendar days, commencing on Monday and ending on Friday (each a daily basis "Sales Period"), or otherwise such lesser number of days as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable best efforts to offer (i) sell during each such Sales Period that number of shares as determined by the Company from time to time in its sole discretion and which is communicated to the Agent by telephone and confirmed promptly by telecopy, each such amount to become effective upon receipt of such notice by the Agent and to apply to Sales Periods thereafter (the "Sales Period Shares") and (ii) sell all of the Shares designated; provided, however, that entire Maximum Amount during the 52 Sales Periods. The Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale shares of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than Stock only by means of ordinary brokers’ ' transactions between members on the Trading Market (as hereinafter defined) for the Stock at market prices prevailing at the time of sale. The Trading Market shall be defined as (i) the NYSE that qualify New York Stock Exchange, Inc., the American Stock Exchange or any national securities exchange on which the Stock is admitted for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
trading or (ii) Notwithstanding the foregoing, the Company, through any facilities of the Authorized Company Representatives, may instruct the Sales Agent by telephone Nasdaq Stock Market (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction"Nasdaq"). In addition, the The Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed telecopy), at any time and from time to by the Company and the Sales Agent)time, suspend the offering of Stock hereunder until the Shares; Company notifies the Agent in writing to resume sales under this Agreement; provided, however, that such suspension or termination shall not affect or impair the parties’ ' respective obligations with respect to the Shares shares of Stock sold hereunder prior to the giving of such notice.
(iii) . The Sales Agent hereby covenants and agrees shall not to make any sales solicit or arrange for the solicitation of the Shares on behalf customers' orders in anticipation of or in connection with such transactions, nor shall it sell short as principal shares of Stock except in connection with customary market making activities in the Company, pursuant 's outstanding securities. The net proceeds (the "Net Proceeds") to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of for the Company as shall be agreed Sales Period Shares sold by the Company and Agent during a Sales Period will equal .98 times the Sales Agent.
(iv) The compensation to the Proceeds. Sales Agent, as an agent of the CompanyProceeds shall mean, for sales of a given Sales Period, the Shares shall be up to 1.25% of the aggregate gross sales price proceeds for the sale of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceedsPeriod Shares, after further deduction for minus any transaction fees imposed by any governmental or self-regulatory organization in with respect of to such sales, shall constitute . The compensation payable by the net proceeds Company to the Company for such Agent with respect to the sale of Sales Period Shares sold hereunder (the “Net "Agent's Compensation") shall equal .02 times the Sales Proceeds”).
(v) . The Sales Agent shall provide written confirmation to the Company on the business day following the close final day of trading on the NYSE each day in Sales Period during which the sales of Sales Period Shares are sold under this Section 4(a) made setting forth forth, with regard to such Sales Period, the amount dates included in the Sales Period, the number of Sales Period Shares sold, the Shares sold on gross proceeds from the sale of such dayshares, any fees imposed by any governmental or self-regulatory organization, the Sales Proceeds, the Agent's Compensation and the Net Proceeds to the Company. The Company and shall effect the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent applicable number of shares of Stock to the Sales Clearing Agent’s account, or to the 's account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) Corporation on or by such other means before the settlement date of delivery as may be mutually agreed upon by each sale hereunder. Proceeds from the parties hereto, which in all cases sale of Stock shall be freely tradable, transferable, registered shares available in good deliverable form, in return for payments in same the Trading Account on the third business day funds delivered to following each sale of Stock hereunder or such later date on which the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Clearing Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to actually effects the settlement of such sale (each a "Closing Date"). The Company shall pay the transfer of Agent's compensation, in immediately available funds, or the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At Agent may direct the Clearing Agent to withhold such funds from the Clearing Agent's account and pay the same to the Agent, on each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q))Closing Date. On each Closing Date, the Company shall be deemed to have affirmed each of their respective representations representation, warranty, covenant and warranties other agreement contained in this the Agreement. Any obligation of the Sales Agent to use its commercially reasonable best efforts to sell the Shares on behalf of the Company Stock shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 Article IV of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Samples: Sales Agency Agreement (Centerpoint Properties Trust)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.:
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE AMEX (other than a day on which the NYSE AMEX is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as reasonably agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the designated Shares. The gross sales of any Shares designated; provided, however, that sold under this Section 3(a) shall be the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale market price for shares of the Shares Company’s Common Stock sold by the Manager under this Section 3(a) on behalf the AMEX at the time of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”)sale.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors and notified to the Manager in writing. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy), suspend the offering of the Shares; Shares; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (Aa) by means of At-the-ordinary brokers’ transactions between members of the AMEX that qualify for delivery of a Prospectus to the AMEX in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At the Market Offerings Offerings”) and (Bb) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager. The Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(14) under the Exchange Act or a “distribution” within the meaning of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is not an At the Market Offering, the Company will provide to the Manager, at the Manager’s request and upon reasonable advance notice to the Company, on or prior to the Settlement Date, the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 5 hereof that the Company would be required to provide to the Manager in connection with a sale of Shares pursuant to a Terms Agreement, each dated the Settlement Date, and such other documents and information as the Manager shall reasonably request.
(iv) The compensation to the Sales AgentManager for sales of Shares, as an agent of the Company, for sales of the Shares shall be up to 1.253.00% of the gross sales price of the Shares sold pursuant to this Section 4(a) or 3(a), and such lower amount rate of compensation shall not apply when the Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeprincipal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE AMEX each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (Aa) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bb) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date for Shares delivered by the Company, the Manager will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi)effective overnight Federal Funds rate.
(vii) At each Time of Sale, Settlement Date and Representation Filing Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. The Company covenants and agrees with the Manager that (a) with respect to each of the Company’s first three fiscal quarters, on or prior to the second business day after any date on which the Company shall be obligated to file a quarterly report on Form 10-Q in respect of such quarter, (b) with respect to the Company’s fourth fiscal quarter for year 2002, on or prior to the forty-seventh day after the end of such quarter and (c) with respect to the Company’s fourth fiscal quarter for year 2003 and for each year thereafter, on or prior to the thirty-seventh day after the end of such quarter in which sales of Shares were made by the Manager pursuant to this Section 3(a) (each such date, a “Filing Date”), the Company will file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b), which prospectus supplement will set forth, with regard to such quarter, the number of Shares sold through the Manager as agent pursuant to this Section 3(a) in At the Market Offerings, the Net Proceeds to the Company and the compensation paid by the Company with respect to such sales of Shares pursuant to this Section 3(a) and deliver such number of copies of each such prospectus supplement to the AMEX as are required by such Exchange. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any a Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement and any Terms Agreement exceed the number set forth in Section 1 or the number of Shares authorized from time to time to be issued and sold shares of Common Stock available for issuance under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Manager shall calculate on a weekly basis the average daily trading volume (as defined by Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement orand, if applicable, a Terms Agreement.
(e) Any offer, solicitation or which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares shall be effected by or through only one the Manager. The commitment of the Agents on any single trading day.
(f) Subject Manager to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales purchase Shares pursuant to this any Terms Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could shall be deemed to be, in possession have been made on the basis of material non-public information.
(g) Notwithstanding any other provision the representations and warranties of this Agreementthe Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company shall not offerfor such Shares, sell or deliverany provisions relating to rights of, or request and default by, underwriters acting together with the offer or saleManager in the reoffering of the Shares, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues and date (each such time and date being referred to herein as a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings AnnouncementTime of Delivery”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as place of delivery of and payment for the same fiscal period or periodssuch Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data accountants’ letters and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter certificates pursuant to this Section 4(g) shall not relieve the Company from any 5 of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person information or entity if it does not sell Shares for any reason other than a failure documents required by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the CompanyManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Impac Mortgage Holdings Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Partnership agrees to issue and sell through the Sales AgentManagers, as sales agentagents, and the Sales Agent each Manager agrees to use its commercially reasonable efforts to sell, as sales agent agents for the CompanyPartnership, the Shares Units on the following terms.
(i) The Shares Units are to be sold on a daily basis or otherwise as shall be agreed to by the Company Partnership and the Sales Agent such Manager on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company Partnership has instructed the Sales Agent such Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule B D hereto (the “Authorized Company Partnership Representatives”) to make such sales and (C) the Company Partnership has satisfied its obligations under Section 8 6 of this Agreement. The Company Partnership will designate the maximum amount number of the Shares Units to be sold and the minimum price per Unit at which such Units may be sold by the Sales Agent such Manager daily as agreed to by the Sales Agent such Manager and in any event not in excess of the amount of Units available for issuance under the currently effective Registration Statement relating to and the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, Prospectus or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares Units authorized from time to time to be issued and sold under this Agreement by the CompanyETP LLC’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent such Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent such Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Units designated on any day; provided, however, that the Sales Agent such Manager shall have no obligation to offer or sell any SharesUnits, and the Company Partnership acknowledges and agrees that the Sales Agent such Manager shall have no such obligation, in the event an offer or sale of the Shares Units on behalf of the Company Partnership may in the judgment of the Sales Agent such Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent such Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the CompanyPartnership, through any of the Authorized Company Partnership Representatives, may instruct the Sales Agent such Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares Units if such sales cannot be effected at or above the price designated by the Company Partnership in any such instruction. In addition, the Company Partnership or the Sales Agent such Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Units for any reason and at any time (a “Suspension”); provided, however, that such suspension Suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Units sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Each Manager hereby covenants and agrees not to make any sales of the Shares Units on behalf of the CompanyPartnership, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership and the Sales Agentsuch Manager.
(iv) The compensation to the Sales Agenteach Manager, as an agent of the CompanyPartnership, for sales of the Shares Units shall be up to 1.252% of the gross sales price of the Shares Units sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to timespecified in Schedule E attached hereto. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company Partnership for such Shares Units (the “Net Proceeds”).
(v) The Sales Agent Each Manager shall provide written confirmation to the Company Partnership following the close of trading on the NYSE each day in which the Shares Units are sold under this Section 4(a) 3(a), setting forth the aggregate amount of the Shares Units sold on such day, the aggregate Net Proceeds to the Company Partnership, and the aggregate compensation payable by the Company Partnership to the Sales Agent such Manager with respect to such sales.
(vi) Settlement for sales of the Shares Units pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third trading day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company Partnership and the Sales Agent such Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Units sold through the Sales Agent such Manager for settlement on such date shall be issued and delivered by the Company Partnership to the Sales Agent such Manager against payment of the Net Proceeds for the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares Units by the Company Partnership or its transfer agent to the Sales Agentsuch Manager’s account, or to the account of the Sales Agentsuch Manager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formunits eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares Units on any Settlement Date, the Company Partnership shall (A) indemnify and hold the Sales Agent such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company Partnership and (B) pay the Sales Agent such Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Partnership Representatives shall be the contact persons for the Company Partnership for all matters related to the settlement of the transfer of the Shares Units through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(q)), the Company Partnership shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent any Manager to use its commercially reasonable efforts to sell the Shares Units on behalf of the Company Partnership shall be subject to the continuing accuracy of the representations and warranties of the Company Partnership herein, to the performance by the Company Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company Partnership wishes to issue and sell the Shares Units other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent a Manager of the proposed terms of such Placement. If the Sales Agentsuch Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyPartnership, wishes to accept amended terms, the Sales Agent such Manager and the Company Partnership will enter into a Terms Agreement setting forth the terms of such Placement, and such Terms Agreement will not be binding on the Partnership or such Manager unless and until the Partnership and such Manager have executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ic) Under no circumstances shall the Partnership cause or request the offer or sale of any Units if, after giving effect to the sale of such Units, the aggregate number of Shares sold gross sales proceeds pursuant to this Agreement would exceed the number lesser of Shares (A) the amount set forth in Section 1, (B) the amount available for offer and sale under the currently effective Registration Statement and the Prospectus and (C) the amount authorized from time to time to be issued and sold under this Agreement by the CompanyETP LLC’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Managers in writing. Under no circumstances shall the Partnership cause or request the offer or sale of any Units at a price lower than the minimum price authorized from time to time by ETP LLC’s board of directors or a duly authorized committee thereof, and notified to the Managers in writing.
(iii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the SharesUnits, it shall promptly notify the other party and sales of the Shares Units under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares Units to or through the Sales Agent any Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Units or delivery of instructions to offer and sell Units as are set forth herein and as may be mutually agreed upon by the Company Partnership and any Manager, the Sales AgentPartnership shall not request the sale of any Units that would be sold, sales pursuant and no Manager shall be obligated to this Agreement may not be requested by sell, (i) during the Company and need not be made by 14 calendar days prior to the Sales Agent during any period in date (each, an “Announcement Date”) on which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company Partnership shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods of operations (each, an “Earnings Announcement”), (ii) at any time from and including an Announcement Date through and including the Representation Date time that occurs in connection with is 24 hours after the Company filing time that the Partnership files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, or (iii) during any other period in which the Partnership is, or could be deemed to be, in possession of material non-public information; provided that, unless otherwise agreed between the Company shall first Partnership and any Manager, for purposes of (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide above, such period shall be deemed to end 24 hours after the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationnext subsequent Filing Time.
(hf) The Company Partnership acknowledges and agrees that (A) there can be no assurance that the Sales Agent any Manager will be successful in selling the SharesUnits, (B) the Sales Agent no Manager will incur no any liability or obligation to the Company Partnership or any other person or entity if it such Manager does not sell Shares Units for any reason other than a failure by the Sales Agent such Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Units in accordance with the terms of this Agreement, and (C) the Sales Agent each Manager shall be under no obligation to purchase Shares Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent such Manager and the CompanyPartnership.
Appears in 1 contract
Samples: Equity Distribution Agreement (Energy Transfer Partners, L.P.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable best efforts to sell, as sales agent for the Company, the Shares on the following terms.:
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as reasonably agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable best efforts to offer and sell all of the designated Shares. The gross proceeds from sales of any Shares designated; sold under this Section 3(a) shall be based on the market price for shares of the Company's Common Stock sold by the Manager under this Section 3(a) on the NYSE at the time of such sale and the number of Shares sold by the Manager.
(ii) Notwithstanding the foregoing, the Company may, at any time and from time to time, instruct the Manager by telephone (confirmed promptly by telecopy) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable best efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company's Common Stock Committee of the Board of Directors and notified to the Manager in writing. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the Sales Agent shall have no obligation parties' respective obligations with respect to offer or sell the Shares sold hereunder prior to the giving of such notice. Written notice of reactivation will be required after any Shares, and such written notice of suspension before the Company acknowledges Manager will accept telephone instructions to resume the sale of Shares on a reasonable best efforts basis.
(iii) The Manager hereby covenants and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale not to make any sales of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is Company, pursuant to this Section 3(a), other than (a) by means of ordinary brokers’ ' transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-"At the Market Offerings”).
(ii") Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (Bb) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager. The Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a "block" under Rule 10b-18(a)(14) under the Exchange Act or a "distribution" within the meaning of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed an "underwriter" under the Act in a transaction that is not an At the Market Offering, the Company will provide to the Manager, at the Manager's request and upon reasonable advance notice to the Company, on or prior to the Settlement Date, the opinions of counsel, accountants' letters and officer's certificate pursuant to Section 5 hereof that the Company would be required to provide to the Manager in connection with a sale of Shares pursuant to a Terms Agreement, each dated the Settlement Date. The Manager hereby covenants and agrees that it shall not engage in a sale of Shares on the Company's behalf that would constitute the sale of a "block" or a "distribution", each as described above, without the Company's prior written consent.
(iv) The compensation to the Sales AgentManager for sales of Shares, as an agent of the Company, for sales of the Shares shall be up to 1.251.33% of the gross sales price of the Shares sold pursuant to this Section 4(a) or 3(a), and such lower amount rate of compensation shall not apply when the Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeprincipal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “"Net Proceeds”").
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount number of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager and any other fees deducted with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “"Settlement Date”"). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the Manager's account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (Aa) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bb) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons for the Company for all matters related Manager fails to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, deliver proceeds on any Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the for Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance delivered by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and Manager shall pay the Company will enter into a Terms Agreement setting forth interest on the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales amount of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares proceeds to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material nonentitled based on the effective overnight Federal Funds Rate (as defined below) plus twenty-public information.
(g) Notwithstanding any other provision five basis points until such proceeds plus interest are paid. For purposes of this Agreement, "Federal Funds Rate" means, for any day, the Company shall weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding business day by the Federal Reserve Bank of New York or, if such rate is not offerso published for any day that is a business day, sell or deliverthe average quotations, or request for the offer or saleday, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure transactions received by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms Manager from three Federal funds brokers of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed recognized standing selected by the Sales Agent and the Companyit.
Appears in 1 contract
Samples: Equity Distribution Agreement (Lucent Technologies Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.:
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed (which such instructions need not be provided on a daily basis) the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “"Authorized Company Representatives”") to make such sales and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s 's board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE prospectus in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable efforts to sell, any Shares at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors and notified to the Manager in writing. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.254.25% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount number of the Shares sold on such day, the aggregate gross sale proceeds and the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales Agent’s Manager's designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives personnel listed on Schedule C shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(o)), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number gross sales proceeds of the Shares sold pursuant to this Agreement exceed the number least of (A) the amount set forth in Section 1, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the aggregate dollar amount of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s 's board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Shares or delivery of instructions to offer and sell Shares as set forth herein and as may be mutually agreed upon by the Company and the Sales AgentManager, offers and sales of Shares pursuant to this Agreement may shall not be requested by the Company and need not be made by the Sales Agent Manager at any time when or during any period in which the Company is or could be deemed to be, be in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager will be successful in selling the Shares, (B) the Sales Agent Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent Manager and the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Empire District Electric Co)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (a "Trading Day") (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B C hereto (the “"Authorized Company Representatives”") to make such sales and (C) the Company has satisfied its obligations under Section 8 5 of this Agreement. The Company will designate the maximum amount number of the Shares to be sold by the Sales Agent Manager daily or as otherwise agreed to by the Sales Agent Manager and the Company and in any event not in excess of the amount of Shares available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s 's board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated on any day; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent Manager constitute the sale of a “"block” " under Rule 10b-18(a)(5) under the Exchange Act or a “"distribution” " within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “"underwriter” " under the Act in a transaction that is other than by means of ordinary brokers’ ' transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers' transactions are hereinafter referred to as “At-the-"At the Market Offerings”").
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by mail from the Company and the Sales AgentCompany) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction, which price shall not be below the par value of the Common Stock. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agentmail from such party), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ ' respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.252% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “"Net Proceeds”").
(v) The Sales Agent Manager shall provide written confirmation to the Company as soon as practicable following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third trading day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company and the Sales Agent Manager (each such date, a “"Settlement Date”"). As used in the preceding sentence and in Section 6 below, the term "business day" means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s Manager's account, or to the account of the Sales Agent’s Manager's designee, at The Depository Trust Company ("DTC") through its Deposit and Withdrawal at Custodian System (“"DWAC”") or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement or as set forth in Section 3(a) of any Alternative Equity Distribution Agreement (each, a “"Placement”"), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ii) In the event the Company engages the Manager for a sale of Shares that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act, the Company and the Manager will agree to compensation that is customary for the Manager with respect to such transactions.
(i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement and any Alternative Equity Distribution Agreement would exceed the number lesser of Shares (A) the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement and any Alternative Equity Distribution Agreement by the Company’s 's board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares at a price lower than the minimum price authorized from time to time by the Company's board of directors or a duly authorized committee thereof, and notified to the Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Alternative Equity Sales Distribution Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Manager (which such request may be by electronic mail), the Manager shall promptly calculate and provide in writing to the Company a report setting forth, for the prior week, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(d) Each sale of the Shares to or through the Sales Agent Manager or any Alternative Manager, as applicable, shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement, or the respective Alternative Equity Distribution Agreement or, if applicable, an Alternative Terms Agreement, as applicable.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Shares or delivery of instructions to offer and sell Shares as are set forth herein herein, or in any Alternative Equity Distribution Agreement, and as may be mutually agreed upon by the Company and the Sales AgentManager or any Alternative Manager, as applicable, offers and sales of Shares pursuant to this Agreement may or any Alternative Equity Distribution Agreement, as applicable, shall not be requested by the Company and need not be made by the Sales Agent Manager or any Alternative Manager, as applicable, at any time when or during any period (i) in which the Company is or could be deemed to be, be in possession of material non-public information.
, (gii) Notwithstanding any other provision the Company's xxxxxxx xxxxxxx policy, as then in effect, would prohibit the purchases or sales of the Company's Common Stock by its officer or directors; provided that, unless otherwise agreed between the Company and the Manager, for purposes of this Agreementclause (ii), such period shall be deemed to end on the Company shall not offerdate on which the Company's next subsequent Annual Report on Form 10-K or 10-Q, sell as the case may be, is filed with the Commission or deliver, or request the offer or sale, of any Shares pursuant to this Agreement (iii) at any time during the period from and including the time date on which the Company issues shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods of operations (each, an “"Earnings Announcement”") through and including the Representation Date time that occurs in connection with is 24 hours after the time that the Company filing files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager or any Alternative Manager will be successful in selling the Shares, (B) neither the Sales Agent Manager nor any Alternative Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Manager or any Alternative Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement or any Alternative Equity Distribution Agreement, as applicable, and (C) neither the Sales Agent Manager nor any Alternative Manager shall be under no any obligation to purchase Shares on a principal basis pursuant to this Agreement or any Alternative Equity Distribution Agreement, as applicable, except as otherwise specifically agreed in writing by the Sales Agent Manager and the Company or any Alternative Manager and the Company, as applicable.
(g) The Company agrees that, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Shares or sales of Common Stock in Rule 415(a)(4) Offerings shall only be effected by or through the Manager or an Alternative Manager, but in no event by more than one Manager on any single given day, and the Company shall in no event request that the Manager or any Alternative Manager sell Shares on the same day.
Appears in 1 contract
Samples: Equity Distribution Agreement (Omega Healthcare Investors Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManagers, as sales agentagents, and the Sales Agent each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager through whom the sale of Shares is effected on that day, on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Trading Day”), (B) the Company has instructed the Sales Agent such Manager by telephone (confirmed promptly by electronic mail) (mail or as otherwise other method mutually agreed to by the Company and the Sales Agentparties) from any of the individuals listed as an authorized representatives representative of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales sales, and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The On any Trading Day, the Company shall sell Shares through only one of the Managers, but in no event through more than one, and the Company shall give at least one business day prior written notice by facsimile, email or other method mutually agreed to by the parties to such Manager to notify it of any change of the Manager through whom the sale of Shares will be effected. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Company or the Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which any of Barclays, BB&T, Citi, X.X. Xxxxxx, RBC, Scotia, and Xxxxx Fargo is acting for the Company in a capacity other than as Manager under this Agreement. On any Trading Day, the Company will designate the maximum amount number of the Shares to be sold by the Sales Agent daily Manager effecting the sales on that day, as agreed to by the Sales Agent and such Manager (in any event not in excess of the amount of Shares available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board Board of directorsDirectors, or a duly authorized committee thereof, and notified to the Sales Agent Managers in writing (a “Placement Notice”writing), and the minimum price per share at which such Shares may be sold. Subject to the terms and conditions hereof, the Sales Agent each Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated to be sold by such Manager on any day; provided, however, that the Sales Agent no Manager shall have no any obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Managers shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may may, in the judgment of the Sales Agent such Manager, constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent such Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager through whom the sale of Shares is to be effected on that day, by telephone (confirmed promptly by electronic mail) (mail or as otherwise other method mutually agreed to by the Company and the Sales Agent) parties), not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent Manager, may, upon notice to the other party parties hereto by telephone (confirmed promptly by electronic mail) (mail or as otherwise other method mutually agreed to by the Company and the Sales Agentparties), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Each of the Managers hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings Offerings, and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManagers.
(iv) The compensation to the Sales AgentManagers, as an agent of the Company, for sales of the Shares shall be up to 1.252% of the gross sales price (the “Managers’ Compensation”) of the Shares sold pursuant to this Section 4(a3(a). The gross sales price of any Shares sold (the “Gross Proceeds”) or such lower amount pursuant to this Agreement by a Manager acting as otherwise mutually agreed upon by sales agent of the Company and shall be the Sales Agent from market price prevailing at the time of sale for shares of the Company’s Common Stock sold by such Manager on the NYSE or otherwise, at prices relating to timeprevailing market prices or at negotiated prices. The remaining proceeds, after deducting the Managers’ Compensation and further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager through whom sales are affected shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares sold on such day, the aggregate Gross Proceeds to the Company, the aggregate Net Proceeds to the Company Company, and the compensation aggregate Managers’ Compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third Trading Day is not a business day (as defined below), then settlement will occur on the next succeeding Trading Day that is also a business day), unless another date as may shall be agreed upon by the Company and the Sales Agent Manager selling such Shares (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent such Manager against payment of (i) the Net Proceeds for or (ii) the Gross Proceeds from the sale of such Shares. In the event that the Manager delivers the Gross Proceeds to the Company at a Settlement Date, the Managers’ Compensation shall be set forth and invoiced in a periodic statement from the Manager to the Company and payment of such amounts shall be made promptly by the Company after its receipt thereof. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agentapplicable Manager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager selling such Shares harmless against any loss, claim or damage (including reasonable legal fees and expenses) arising from or as a result of such default by the Company Company, and (B) pay the Sales Agent such Manager any commission commission, discount or other compensation to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)4(q) hereof), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent a Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Managers of the proposed terms of such Placement. If the Sales Agenta Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent such Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ic) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate Gross Proceeds or the aggregate number of the Shares sold pursuant to this Agreement would exceed the number lesser of Shares (i) the amount set forth in Section 1, (ii) the amount available for offer and sale under the currently effective Registration Statement, and (iii) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board Board of directorsDirectors, or a duly authorized committee thereof, and notified to the Sales Agent Managers in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares at a price lower than the minimum price authorized from time to time by the Company’s Board of Directors or a duly authorized committee thereof, and notified to the Managers in writing.
(iii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party party, and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent Managers shall be made in accordance with the terms of this Agreement or, if applicable, a the Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Shares or delivery of instructions to offer and sell Shares as are set forth herein and as may be mutually agreed upon by the Company and the Sales AgentManagers, offers and sales of Shares pursuant to this Agreement may shall not be requested by the Company and need not be made by the Sales Agent Managers (i) during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of this Agreement, would prohibit the purchase or sale of Common Stock by persons subject to such policy, (ii) during any other period in which the Company is is, or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale(iii) except as provided in Section 3(f) below, of any Shares pursuant to this Agreement at any time during the period from and including the time date (each, an “Announcement Date”) on which the Company issues shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods of operations (each, an “Earnings Announcement”) through and including the Representation Date time that occurs in connection with is 24 hours after the time that the Company filing files (a Quarterly Report “Filing Time”) a quarterly report on Form 10-Q or an Annual Report annual report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement.
(f) If the Company wishes to offer, unless sell or deliver Shares at any time during the period from and including an Announcement Date through and including the time that is 24 hours after the corresponding Filing Time, the Company shall first (i) prepare and deliver to the Sales Agent Managers (with a copy to counsel for the Sales AgentManagers) a Current Report on Form 8-K that includes which shall include substantially the same financial and related information that as was included set forth in such the relevant Earnings Announcement (other than any earnings projections and projections, similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales AgentManagers, and, prior to its filing, and obtain the written consent of the Sales Agent Managers to the filing thereof (such filing (which consent shall not to be unreasonably withheld), (ii) provide the Sales Agent Managers with the officers’ certificatescertificate, accountants’ letter and opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, counsel called for by Section 4 hereof, (iii) afford the Sales Agent Managers the opportunity to conduct a due diligence review in accordance with Section 5(v4(w) hereof prior to filing such Earnings 8-K hereof, and (iv) file (rather than furnish) such Earnings 8-K with the Commission, then the provisions of clause (iii) of Section 3(e) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of the relevant quarterly report on Form 10-Q or annual report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (Ai) the delivery of any officers’ certificatescertificate, accountants’ letter and opinions or and letters of counsel or accountants’ letter pursuant to this Section 4(g3(f) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report quarterly report on Form 10-Q or Annual Report annual report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, accountants’ letters and legal opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, Section 4 hereof, and (Bii) this Section 4(g3(f) shall in no way affect or limit the operation of the provisions of clauses (i) and (ii) of Section 4(d) hereof3(e), which shall have independent application.
(hg) The Company acknowledges and agrees that (Ai) there can be no assurance that the Sales Agent Managers will be successful in selling the Shares, (Bii) the Sales Agent Managers will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Managers to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (Ciii) the Sales Agent Managers shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent Managers and the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Duke Realty Limited Partnership/)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated.
(ii) Notwithstanding the foregoing, the Company may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors and notified to the Manager in writing. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the Sales Agent parties’ respective obligations with respect to any Shares sold hereunder prior to the giving of such notice.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act or any other existing trading market for the Common Stock or to or through a market maker other than on an exchange (such transactions are hereinafter referred to as “At the Market Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall have no obligation to offer or sell any Shares, be agreed by the Company and the Manager. The Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or a sale of the Shares on behalf of the Company may in the judgment of the Sales Agent would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of not an At the NYSE that qualify for delivery of a Prospectus Market Offering, the Company will provide to the NYSE in accordance with Rule 153 under Manager, at the Act (such transactions are hereinafter referred Manager’s request and upon reasonable advance notice to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any on or prior to the Settlement Date (as defined below), the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 hereof that the Company would be required to provide to the Manager in connection with a sale of the Authorized Shares pursuant to a Terms Agreement, each dated the Settlement Date (as defined below), and such other documents and information as the Manager shall reasonably request. The Company Representativesacknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Shares, may instruct (B) the Sales Agent by telephone (confirmed promptly by electronic mail) (Manager will incur no liability or as otherwise agreed obligation to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice any other person or entity if it does not sell any Shares for any reason except as a result of an act or failure to the other party hereto by telephone (confirmed promptly by electronic mail) (act undertaken or as otherwise agreed omitted to be taken by the Company Manager through its gross negligence or willful misconduct, and (C) the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension Manager shall not affect or impair the parties’ respective obligations with respect be under no obligation to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make purchase any sales of the Shares on behalf of the Company, a principal basis pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentAgreement.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.25% as set forth on Schedule B, and such rate of compensation shall not apply when the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeprincipal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount number of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi)effective overnight Federal Funds rate.
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)4(q), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any a Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number offering price of the Shares sold pursuant to this Agreement, the Alternative Distribution Agreements and any related Terms Agreement exceed in the number aggregate the lesser of Shares authorized from time to time to the Maximum Amount and the aggregate dollar value of shares of Common Stock that may be issued offered and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party party, and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Manager shall calculate on a weekly basis the average daily trading volume (as defined by Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement orand, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(e) Any offer, solicitation or sale Without the prior written consent of the Shares shall be effected by or through only one each of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales AgentManager, no sales pursuant to this Agreement may of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be requested by the Company and need not be made by the Sales Agent obligated to sell, during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, or during any other period in which the Company is is, or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision ; provided that, unless otherwise agreed between the Company and the Managers, for purposes of this Agreementparagraph (e), such period shall be deemed to end on the Company shall not offer, sell or deliver, or request date on which the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Company’s next subsequent Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periodsQuarterly Report on Form 10-Q, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K is filed with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company acknowledges and agrees that (A) there can be no assurance that Until the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms termination of this Agreement, the Manager and (C) its affiliates will not take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in the Sales Agent shall be under no obligation stabilization or manipulation of the price of any security of the Company to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by facilitate the Sales Agent and sale or resale of the CompanyShares.
Appears in 1 contract
Samples: Equity Distribution Agreement (Health Care Reit Inc /De/)
Sale and Delivery of Securities. (a) On Upon the basis of the representations, representations and warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through to the Sales Agent, as sales agentrespective Underwriters, and each of the Sales Agent Underwriters, severally and not jointly, agrees to use its commercially reasonable efforts to sell, as sales agent for purchase from the Company, the Shares on number of Underwritten Securities set forth opposite the following termsname of such Underwriter in Schedule A hereto, subject to adjustment in accordance with Section 7 hereof, at a purchase price of $9.61 per Unit (the “Underwritten Purchase Price”). The Company is advised by the Representative that the Underwriters intend (i) to make a public offering of their respective portions of the Securities as soon after the effectiveness of this Agreement as in the Representative’s judgment is advisable and (ii) initially to offer the Securities upon the terms set forth in the Prospectus (the “Offering”). The Representative may from time to time increase or decrease the public offering price of the Securities after the initial public offering to such extent as the Representative may determine.
(b) In addition to the discount from the public offering price represented by the Underwritten Purchase Price set forth in the first sentence of Section 1(a) of this Agreement, the Company hereby agrees to pay to the Underwriters a deferred discount of $0.39 per Unit of the Securities purchased hereunder, which includes an issuance of 90,000 ordinary shares (or up to 103,500 ordinary shares if the underwriters’ over-allotment option is exercised in full) to the Representative as part of the underwriting compensation in connection with the initial public offering and commissions of $0.14 per Unit will be paid in cash to the Underwriters upon the closing of the initial public offering and $0.10 per Unit will be released to the Underwriters only on the completion of an initial business combination, and $0.15 per Unit will be released to one or more advisors (which are FINRA members), which may include the Underwriters, at the discretion of the Company based on the amount remaining in the trust account after the completion of an initial Business Combination, subject to adjustment (the “Underwritten Deferred Discount”), which Underwritten Deferred Discount will be deposited and held in the Trust Account and payable directly from the Trust Account, without accrued interest, to the Representative, on behalf of the Underwriters, upon the Company’s consummation of its initial Business Combination. Notwithstanding the foregoing, up to $0.15 per Unit of the Underwritten Deferred Discount based on the amount remaining in the trust account after the completion of an initial Business Combination may be allocated by the Company in its sole discretion to one or more third parties that are not the Underwriters (but that are brokerage member institutions of the Financial Industry Regulatory Authority, or “FINRA”) that assist the Company in identifying and consummating the initial Business Combination. The Underwriters hereby agree that if no Business Combination is consummated by the Company within the time period provided in the Trust Agreement and the funds held under the Trust Agreement are distributed to the holders of the Public Shares sold pursuant to this Agreement (the “Public Shareholders”), (i) the Underwriters will forfeit any rights or claims to the Underwritten Deferred Discount and (ii) the trustee under the Trust Agreement (the “Trustee”) is authorized to distribute the Underwritten Deferred Discount to the Public Shareholders on a pro rata basis.
(c) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to 900,000 Option Securities, at a purchase price of $9.61 per Unit (the “Option Purchase Price”). Said option may be exercised only to cover over-allotments in the sale of the Underwritten Securities by the Underwriters. Said option may be exercised in whole or in part at any time on or before the 45th day after the date of the Prospectus upon written notice by the Representative to the Company setting forth the number of Option Securities as to which the several Underwriters are exercising the option and the settlement date. The Shares are number of Option Securities to be sold purchased by each Underwriter shall be based upon the same percentage of the total number of the Option Securities to be purchased by the several Underwriters as such Underwriter is purchasing of the Underwritten Securities, subject to such adjustments as the Representative in its absolute discretion shall make to eliminate any fractional shares.
(d) The Company hereby agrees to pay to the Underwriters a deferred discount of $0.39 per Unit of the Option Securities purchased hereunder, which includes an issuance of 90,000 ordinary shares (or up to 103,500 ordinary shares if the underwriters’ over-allotment option is exercised in full) to the Representative as part of the underwriting compensation in connection with the initial public offering and commissions of $0.14 per Unit will be paid in cash to the Underwriters upon the closing of the initial public offering and $0.10 per Unit will be released to the Underwriters only on the completion of an initial business combination, and $0.15 per Unit will be released to one or more advisors (which are FINRA members), which may include the Underwriters, at the discretion of the Company based on the amount remaining in the trust account after the completion of an initial Business Combination, subject to adjustment, (the “Option Deferred Discount” and together with the Underwritten Deferred Discount, the “Deferred Discount”), which Option Deferred Discount will be deposited and held in the Trust Account and payable directly from the Trust Account, without accrued interest, to the Representative, on behalf of the Underwriters, upon the Company’s consummation of its initial Business Combination. Notwithstanding the foregoing, up to $0.15 per Unit of the Option Deferred Discount based on the amount remaining in the trust account after the completion of an initial Business Combination may be allocated by the Company in its sole discretion to one or more third parties that are not the Underwriters (but that are brokerage member institutions of FINRA) that assist the Company in identifying and consummating the initial Business Combination. The Underwriters hereby agree that if no Business Combination is consummated by the Company within the time period provided in the Trust Agreement and the funds held under the Trust Agreement are distributed to the Public Shareholders (i) the Underwriters will forfeit any rights or claims to the Option Deferred Discount and (ii) the Trustee is authorized to distribute the Option Deferred Discount to the Public Shareholders on a daily basis pro rata basis.
(e) Payment of the purchase price for the Securities shall be made to the Company by Federal Funds wire transfer against delivery of the certificates or otherwise security entitlements in respect of the Securities to the Representative through the facilities of The Depository Trust Company (“DTC”) for the respective accounts of the Underwriters. Payment and delivery of the Underwritten Securities and, if the option provided for in Section 1(c) hereof shall have been exercised on or before the second Business Day prior to the Time of Purchase (as defined below), the Option Securities related to such exercise, shall be made at 9:00 A.M., New York City time, on [__________], 2022 (unless another time shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, Representative and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares shall be up to 1.25% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made unless postponed in accordance with the terms provisions of this Agreement or, if applicable, a Terms AgreementSection 7 hereof). The time at which such payment and delivery are to be made is herein referred to as the “Time of Purchase.
(e) Any offer, solicitation or sale ” Electronic transfer of the Shares Securities shall be effected by or through only one made to the Representative at the Time of Purchase in such names and in such denominations as the Agents on any single trading dayRepresentative shall specify.
(f) Subject If the option provided for in Section 1(c) hereof is exercised after the second Business Day prior to the limitations set forth herein and as may be mutually agreed upon Time of Purchase, the Company will deliver the Option Securities (at the expense of the Company) to the Representative, at 200 Xxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000 on the date specified by the Representative (which shall be at least two Business Days after exercise of said option) for the respective accounts of several Underwriters, against payment by the several Underwriters through the Representative of the purchase price thereof. If settlement for any Option Securities occurs after the Time of Purchase, the Company will deliver to the Representative on the settlement date for such Option Securities (an “Option Securities Settlement Date”), and the Sales Agentobligation of the Underwriters to purchase the Option Securities shall be conditioned upon receipt of, sales supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and letters delivered pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public informationSection 5 hereof.
(g) Notwithstanding any other provision Brookline Capital Markets, a division of this AgreementArcadia Securities, the Company shall individually and not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent representative of the Sales Agent to such filing Underwriters, may (which consent but shall not be unreasonably withheld)obligated to) make payment of the purchase price for the Securities, (ii) provide if any, to be purchased by any Underwriter whose funds have not been received by the Sales Agent with the officers’ certificatesTime of Purchase or an Option Securities Settlement Date, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing but such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) payment shall not relieve the Company such Underwriter from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationhereunder.
(h) The Company acknowledges and agrees that (A) there can be no assurance that Deliveries of the Sales Agent will be successful documents described in selling the Shares, (B) the Sales Agent will incur no liability or obligation Section 5 hereof with respect to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by purchase of the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Securities shall be made at the offices of DLA Piper LLP (US) at 2000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxxxxxxxx 00000, at 9:00 A.M., New York City time, at the Time of Purchase. No “in accordance with the terms of this Agreementperson” closing shall be required, and (C) the Sales Agent shall deliveries of documents may be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed undertaken remotely by the Sales Agent and the Companyelectronic delivery.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed reasonable efforts basis, up to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to during the term of this Agreement on the terms set forth herein. The Shares will be sold by the Sales Agent daily as agreed from time to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares time as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant and Prospectus, in amounts, and subject to Section 5(g)price limitations, or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement as directed by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(iib) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the The Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy), at any time and from time to time suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(ivc) The compensation to the Sales Agent, as an agent of the Company, Manager for sales of the Shares shall be up to 1.25at a fixed commission rate of 3% of the gross sales price per share for the Shares sold under this Agreement with respect to and including the first $17.5 million of the gross sales proceeds resulting from Shares sold pursuant to this Section 4(a) or such lower amount 3 and any shares of preferred stock of the Company sold through the Manager as otherwise mutually agreed upon by agent under another agreement between the Manager and the Company and 2.5% of the Sales Agent from time gross sales price per share for each additional Share sold pursuant to timethis Section 3 and for each additional share of preferred stock of the Company sold through the Manager as agent under another agreement between the Manager and the Company. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, sale shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Company and the Manager agree that in the event the Company agrees to compensate an agent of the Company for sales of the Company’s capital stock at a rate in excess of the rates set forth herein, the Company shall promptly notify the Manager and effective as of the date of any such agreement, the commission rate hereunder shall be increased to such higher rate for so long as such agent shall be entitled to such higher rate. At the time of such increased rate of commission, the Company shall prepare and file with the SEC and with any Trading Market a prospectus supplement reflecting such increased rate of commission.
(vd) The Sales Agent Manager acknowledges and agrees that the Company may enter into an agreement providing for the offering on an agency basis of the Company’s Common Stock and/or preferred stock by UBS Securities LLC and/or Bear Xxxxxxx and Co. Inc.; provided, however, that if such agreement provides for compensation to such agents in excess of the rates provided for herein, such rates are subject to the provisions of Section 3(c) hereof. The Company covenants to provide written notice to the Manager of its execution of any such agreement. The Company represents, warrants and agrees with the Manager that on any day on which it has directed the Manager to offer Shares of the Company pursuant to this Section 3 it will not direct any agent or underwriter with respect to the Company’s Common Stock to offer or sell shares of the Company’s Common Stock .
(e) The Manager or its clearing agent shall provide a written confirmation report, which may be by e-mail, to the Company following the close of trading on the NYSE on each day in during which the Shares are sold under this Section 4(a) 3 setting forth the amount number of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vif) Settlement for sales The Company shall open and maintain a trading account (the “Trading Account”) at a clearing agent designated by the Manager to facilitate the transactions contemplated by this Agreement. The Company shall, with respect to each sale of Shares, effect delivery of the applicable number of Shares pursuant to this Section 4(a) will occur the Trading Account, on or before the first third business day following the date on which such sales are made (or such other date day as may be agreed by is industry practice for regular-way trading and with prior notice from the Company and Manager) following each sale of the Sales Agent Stock (each such dateeach, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the The Net Proceeds for from the sale of such Shares. Settlement for all such Shares the Stock shall be effected by free delivery of available in the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to Trading Account following the settlement of the transfer of sale on the Shares through DWAC for purposes of this Section 4(a)(vi)Settlement Date. The Manager’s compensation shall be withheld from the sales proceeds on each Settlement Date and shall be paid to the Manager.
(viig) At each Time of Sale, Settlement Date and Representation Filing Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective representations representation, warranty, covenant and warranties other agreement contained in this Agreement. The Company covenants and agrees with the Manager that (a) with respect to each of the Company’s first three fiscal quarters, on or prior to the second business day after any date on which the Company shall be obligated to file a quarterly report on Form 10-Q in respect of such quarter and (b) with respect to the Company’s fourth fiscal quarter for year 2005 and for each year thereafter, on or prior to the forty second day after the end of such quarter in which sales of Shares were made by the Manager pursuant to this Section 3 (each such date, a “Filing Date”), the Company will at its expense file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b), which prospectus supplement will set forth, with regard to such quarter, the number of Shares sold through the Manager, as agent, pursuant to this Section 3, the Net Proceeds to the Company and the compensation paid by the Company with respect to such sales of Shares pursuant to this Section 3, and deliver such number of copies of each such prospectus supplement to the NYSE, market makers, and Trading Markets (as defined in Section 4(w), as are required by the rules applicable to, or as requested by, such persons. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company Manager under this Agreement shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application5 below.
(h) The If the Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or shall default on its obligation to deliver Shares on any Settlement Date, the Company shall (i) hold the Manager harmless against any loss, claim or any other person damage arising from or entity if it does not sell Shares for any reason other than as a failure result of such default by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, Company and (Cii) pay the Sales Agent shall Manager any commission to which it would otherwise be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Companyentitled absent such default.
Appears in 1 contract
Samples: Common Stock Sales Agreement (Impac Mortgage Holdings Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell exclusively through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on a best efforts basis, up to the Shares Maximum Amount of Stock pursuant to the Offering on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreementterms set forth herein. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, Agent for sales of the Shares Stock shall be up to 1.256% of the gross sales price per share of the Shares Stock sold pursuant to this Section 4(athe Offering. Settlement for sale of Stock will occur on the third business day (the "Closing Date") or following the date on which such lower sale is made. The amount as otherwise mutually agreed upon by of proceeds for such sales to be delivered to the Company against the receipt of the Stock sold shall be equal to the aggregate sales prices at which such Stock was sold, net of the Agent's compensation for such sales. At the time of the settlement of securities hereunder, the Company and the Sales Agent from time shall be deemed to timehave affirmed each representation, warranty, covenant and other agreement contained in this Agreement. The remaining proceedsCompany covenants and agrees with the Agent that the Company has or will timely file a prospectus supplement under the applicable paragraph of Rule 424(b) under the Act, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect which prospectus supplement will set forth the number of such salesshares of Stock sold through the Agent, shall constitute the price at which the Stock was sold, the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales sale of the Shares pursuant to this Section 4(a) will occur on the first business day following the date on which such sales are made or such other date Stock (all as may be agreed provided in writing by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by inclusion in the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicableprospectus supplement), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable best efforts to sell the Shares on behalf of the Company Stock shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares on the following terms.
(i) Shares. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE Arca exchange (other than a day on which the NYSE Arca exchange is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares sought to be sold by the Sales Agent daily as reasonably agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that so designated by the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Company. Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Agent shall not be obligated to use its reasonable efforts to sell, any Shares at a price lower than the minimum price therefor designated from time to time by the Company’s board of directors and notified to the Agent in writing. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy), suspend the offering of the Shares; Shares; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares shall be up to 1.25% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number set forth in Section 1 or the number of Shares authorized from time to time to be issued and sold shares of Common Stock available for issuance under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) currently effective Registration Statement. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale . The Agent hereby covenants and agrees not to make any sales of Shares on behalf of the Company other than by means of ordinary brokers’ transactions between members of the NYSE Arca exchange that qualify for delivery of a Prospectus to the NYSE Arca exchange in accordance with Rule 153 under the Securities Act. The gross sales price of any Shares sold under this Agreement shall be the market price for shares of the Company’s Common Stock sold by the Agent under this Agreement on the NYSE Arca exchange at the time of such sale. The compensation payable to the Agent for sales of Shares shall be equal to 2.00% of the gross sales price of the Shares sold pursuant to this Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall provide written confirmation to the Company following the close of trading on the NYSE Arca exchange each day in which Shares are sold under this Agreement setting forth the amount of Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Agent with respect to such sales. Settlement for sales of Shares will occur on the third business day following the trade date on which such sales are made, unless another date shall be agreed to by the Company and the Agent (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be made in accordance with delivered by the terms Company to the Agent against payment of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or the Net Proceeds from the sale of the such Shares. Settlement for all Shares shall be effected by or through only one free delivery of Shares to the Agent’s account at The Depository Trust Company in return for payments by the Agent of the Agents Net Proceeds from the sale of such Shares in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any single trading day.
Settlement Date, the Company shall (fi) Subject indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the applicable Net Proceeds on any Settlement Date for Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate. At each Applicable Time, each Settlement Date and each Filing Date, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. The Company covenants and agrees with the Agent that on or prior to the limitations earlier of (x) four business days after any date on which the Company shall file an annual report on Form 10-K or quarterly report on Form 10-Q in respect of any quarter in which sales of Shares were made by the Agent under this Agreement or (y) to the extent there shall be an Applicable Time on or following such filing date referred to in clause (x), prior to such Applicable Time, (each such date, a “Filing Date”), the Company will (i) affirm in writing each representation, warranty, covenant and other agreement contained in this Agreement, (ii) file a prospectus supplement to the Prospectus included as part of the Registration Statement with the Commission under the applicable paragraph of Rule 424(b) of the Securities Act, which prospectus supplement will set forth herein and as may be mutually agreed upon forth, with regard to such quarter, the number of Shares sold through the Agent under this Agreement, the Net Proceeds received by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested compensation paid by the Company and need not be made by to the Sales Agent during any period in which the Company is or could be deemed with respect to be, in possession sales of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing deliver such Earnings 8-K and (iv) file (rather than furnish) number of copies of each such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation prospectus supplement to the Company or any other person or entity if it does not sell Shares for any reason other than a failure NYSE Arca exchange as are required by such exchange. Any obligation of the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company, and the performance by the Company of its obligations, set forth in accordance with this Agreement and to the terms continuing satisfaction of the additional conditions specified in Sections 4 and 5 of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Samples: Atm Equity Offering Sales Agreement (Raser Technologies Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees Partnership and each of the Managers agree that the Partnership may from time to issue and time seek to sell Units through the Sales AgentManagers, acting as sales agents, or directly to the Managers acting as principals, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.follows:
(i) The Shares are Any of the individuals listed as an authorized representative of the Partnership on Schedule B hereto, as such Schedule B may be amended or supplemented by the Partnership from time to be sold time (the “Authorized Partnership Representatives”) may submit to any Manager the Partnership’s orders (including any price, time or size limits or other customary parameters or conditions) to sell Units on any Trading Day (as defined herein) substantially in the form attached hereto as Exhibit D, or in a daily basis or otherwise different form and in a different manner as shall be mutually agreed to by the Company Partnership and such Manager (a “Transaction Proposal”); provided, however, that the Partnership will only submit its orders to one of the Managers with respect to any single Trading Day; provided further, however, that in any event the maximum amount of the Units to be sold by such Manager shall not exceed the number of Units available for issuance under the Prospectus and the Sales Agent Registration Statement. If the Partnership delivers a Transaction Proposal to one of the Managers in the form attached hereto as Exhibit D and the proposed terms thereof are acceptable to such Manager, then such Manager shall confirm the terms thereof by countersigning and delivering the Transaction Proposal (which may be by e-mail) to an Authorized Partnership Representative. If the terms of any Transaction Proposal contemplate that Units shall be sold on more than one Trading Day, then the Partnership and the applicable Manager shall mutually agree to such additional terms and conditions as the Partnership, on the one hand, and the applicable Manager, on the other hand, deem necessary in respect of such multiple Trading Days, and such additional terms and conditions shall be binding to the same extent as any day that (A) is a other terms contained in the relevant Transaction Proposal. As used herein, “Trading Day” shall mean any trading day for on the NYSE Primary Stock Exchange (other than a day on which the NYSE Primary Stock Exchange is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares shall be up to 1.25% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell sell, through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.:
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager, but in any event the Shares are to be sold only in trades on the NYSE, on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate in writing the maximum amount and minimum price of the Shares to be sold by the Sales Agent Manager daily as reasonably agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the designated Shares. The gross sales of any Shares designated; sold under this Section 3(a) shall be the market price for shares of the Company’s Common Stock sold by the Manager under this Section 3(a) on the NYSE at the time of such sale.
(ii) Notwithstanding the foregoing, the Company may instruct the Manager in writing not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors or a duly authorized committee of the Board of Directors and notified to the Manager in writing. In addition, the Company or the Manager may, upon notice to the other parties hereto by telephone (confirmed promptly by telecopy), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the Sales Agent shall have no obligation parties’ respective obligations with respect to offer or sell any Shares, and the Company acknowledges Shares sold hereunder prior to the giving of such notice.
(iii) The Manager hereby covenants and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale not to make any sales of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is Company, pursuant to this Section 3(a), other than (a) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (Bb) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager. The Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is not an At the Market Offering, the Company will provide to the Manager, at the Manager’s request and upon reasonable advance notice to the Company, on or prior to the Settlement Date, the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 5 hereof that the Company would be required to provide to the Manager in connection with a sale of Shares pursuant to a Terms Agreement, each dated the Settlement Date (as defined below), and such other documents and information as the Manager shall reasonably request.
(iv) The compensation to the Sales AgentManager for sales of Shares, as an agent of the Company, for sales of the Shares shall be up to 1.252.0% of the gross sales price of the Shares sold pursuant to this Section 4(a) or 3(a), and such lower amount rate of compensation shall not apply when the Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeprincipal. The remaining proceedsproceeds with respect to Shares sold, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (Aa) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bb) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons for Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date the Manager will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi)effective overnight Federal Funds rate.
(vii) At each Time of Sale, Settlement Date and Representation Filing Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective its representations and warranties contained in this Agreement. The Company covenants and agrees with the Manager that (a) with respect to each of the Company’s first three fiscal quarters, on or prior to the date on which the Company shall be obligated to file a quarterly report on Form 10-Q in respect of such quarter and (b) with respect to the Company’s fourth fiscal quarter for year 2006 and for each year thereafter, on or prior to the thirty-fifth day after the end of such quarter in which sales of Shares were made by the Manager pursuant to this Section 3(a) (each such date, a “Filing Date”), the Company will file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b), which prospectus supplement will set forth, with regard to such quarter, the number of Shares sold through the Manager as agent pursuant to this Section 3(a) in At the Market Offerings, the Net Proceeds to the Company and the compensation paid by the Company with respect to such sales of Shares pursuant to this Section 3(a) and deliver such number of copies of each such prospectus supplement to the NYSE as are required by such Exchange. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its the Company’s obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any a Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement and any Terms Agreement exceed the number set forth in Section 1 or the number of Shares authorized from time to time to be issued and sold shares of Common Stock available for issuance under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(ii) If either any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Manager shall calculate on a weekly basis the ADTV (as defined by Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, and a Terms Agreement.
(e) Any offer, solicitation or which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares shall be effected by or through only one the Manager. The commitment of the Agents on any single trading day.
(f) Subject Manager to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales purchase Shares pursuant to this any Terms Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could shall be deemed to be, in possession have been made on the basis of material non-public information.
(g) Notwithstanding any other provision the representations and warranties of this Agreementthe Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company shall not offerfor such Shares, sell or deliverany provisions relating to rights of, or request and default by, underwriters acting together with the offer or saleManager in the reoffering of the Shares, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues and date (each such time and date being referred to herein as a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings AnnouncementTime of Delivery”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as place of delivery of and payment for the same fiscal period or periodssuch Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data accountants’ letters and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter certificates pursuant to this Section 4(g) shall not relieve the Company from any 5 of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person information or entity if it does not sell Shares for any reason other than a failure documents required by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the CompanyManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (American Financial Capital Trust Ii)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell sell, and the Selling Stockholder agrees to sell, through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the CompanyCompany and the Selling Stockholder, the Shares on the following terms.:
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company Company, in the case of Primary Shares, the Selling Stockholder, in the case of Secondary Shares, and the Sales Agent Manager, but in any event the Shares are to be sold only in trades on the NYSE, on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate in writing the maximum amount and minimum price of Primary Shares and the Selling Stockholder will designate in writing the maximum amount and minimum price of Secondary Shares to be sold by the Sales Agent Manager daily as reasonably agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the designated Shares. The gross sales of any Shares designated; sold under this Section 3(a) shall be the market price for shares of the Company's Common Stock sold by the Manager under this Section 3(a) on the NYSE at the time of such sale.
(ii) Notwithstanding the foregoing, the Company may instruct the Manager in writing not to sell Primary Shares and the Selling Stockholder may instruct the Manager in writing not to sell Secondary Shares if such sales cannot be effected at or above the price designated by the Company or the Selling Stockholder, as the case may be, in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Selling Stockholder shall not authorize the sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company's Board of Directors in the case of Primary Shares and the Selling Stockholder's Board of Directors in the case of Secondary Shares and notified to the Manager in writing. In addition, the Company, in the case of the Primary Shares, the Selling Stockholder in the case of the Secondary Shares or the Manager may, upon notice to the other parties hereto by telephone (confirmed promptly by telecopy), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the Sales Agent shall have no obligation parties' respective obligations with respect to offer or sell any Shares, and the Company acknowledges Shares sold hereunder prior to the giving of such notice.
(iii) The Manager hereby covenants and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale not to make any sales of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is Selling Stockholder, pursuant to this Section 3(a), other than (a) by means of ordinary brokers’ ' transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-"At the Market Offerings”).
(ii") Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (Bb) such other sales of the Shares on behalf of the Company or the Selling Stockholder in its capacity as agent of the Company and the Selling Stockholder as shall be agreed by the Company in the case of Primary Shares, the Selling Stockholder in the case of Secondary Shares, and the Sales AgentManager. The Company and the Selling Stockholder each acknowledges and agrees that in the event a sale of Shares on behalf of the Company or the Selling Stockholder would constitute the sale of a "block" under Rule 10b-18(a)(5) under the Exchange Act or a "distribution" within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed an "underwriter" under the Act in a transaction that is not an At the Market Offering, the Company and the Selling Stockholder, will provide to the Manager, at the Manager's request and upon reasonable advance notice to the Company and the Selling Stockholder, on or prior to the Settlement Date, the opinions of counsel, accountants' letters and officers' certificates pursuant to Section 5 hereof that the Company and/or the Selling Stockholder would be required to provide to the Manager in connection with a sale of Shares pursuant to a Terms Agreement, each dated the Settlement Date (as defined below), and such other documents and information as the Manager shall reasonably request.
(iv) The compensation to the Sales AgentManager for sales of Shares, as an agent of the CompanyCompany or the Selling Stockholder, for sales of the Shares shall be up to 1.252.0% of the gross sales price of the Shares sold pursuant to this Section 4(a) or 3(a), and such lower amount rate of compensation shall not apply when the Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeprincipal. The remaining proceedsproceeds with respect to Primary Shares sold, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company and the remaining proceeds with respect to Secondary Shares sold, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such Shares sales, shall constitute the net proceeds to the Selling Stockholder (the “"Net Proceeds”").
(v) The Sales Agent Manager shall provide written confirmation to the Company Company, in the case of Primary Shares, and the Selling Stockholder in the case of Secondary Shares, following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company or the Selling Stockholder, and the compensation payable by the Company or the Selling Stockholder to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “"Settlement Date”"). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company Company, in the case of Primary Shares, and delivered by the Selling Stockholder, in the case of Secondary Shares, to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the Manager's account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company, in the case of Primary Shares, and the Selling Stockholder, in the case of Secondary Shares. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver Primary Shares on any Settlement Date or the Selling Stockholder shall default on its obligation to deliver Secondary Shares on any Settlement Date, the Company, in the case of a default in the delivery of Primary Shares, and the Company and the Selling Stockholder jointly and severally, in the case of a default in the delivery of Secondary Shares, shall (Aa) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or the Selling Stockholder as the case may be and (Bb) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date for Primary Shares delivered by the Company or Secondary Shares delivered by the Selling Stockholder, the Manager will pay the Company in the case of a breach in the payment of proceeds for all matters related to Primary Shares or the settlement Selling Stockholder in the case of a breach in the transfer payment of proceeds for Secondary Shares, interest based on the Shares through DWAC for purposes of this Section 4(a)(vi)effective overnight Federal Funds rate.
(vii) At each Time of Sale, Settlement Date and Representation Filing Date (as defined in Section 5(q)below), each of the Company and the Selling Stockholder shall be deemed to have affirmed each of their respective its representations and warranties contained in this Agreement. The Company covenants and agrees with the Manager that (a) with respect to each of the Company's first three fiscal quarters, on or prior to the date on which the Company shall be obligated to file a quarterly report on Form 10-Q in respect of such quarter and (b) with respect to the Company's fourth fiscal quarter for year 2004 and for each year thereafter, on or prior to the thirty-fifth day after the end of such quarter in which sales of Shares were made by the Manager pursuant to this Section 3(a) (each such date, a "Filing Date"), the Company will file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b), which prospectus supplement will set forth, with regard to such quarter, the number of Shares sold through the Manager as agent pursuant to this Section 3(a) in At the Market Offerings, the Net Proceeds to the Company and the Selling Stockholder and the compensation paid by the Company and the Selling Stockholder with respect to such sales of Shares pursuant to this Section 3(a) and deliver such number of copies of each such prospectus supplement to the NYSE as are required by such Exchange. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company or the Selling Stockholder shall be subject to the continuing accuracy of the representations and warranties of the Company and the Selling Stockholder herein, to the performance by the Company and the Selling Stockholder of its their obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If either of the Company or the Selling Stockholder wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 4(a3(a) of this Agreement (each, a “"Placement”"), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyCompany with respect to Primary Shares or the Selling Stockholder with respect to Secondary Shares, wishes to accept amended terms, the Sales Agent Manager, the Company and the Company Selling Stockholder will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Company, the Selling Stockholder or the Manager unless and until the Company, the Selling Stockholder and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any a Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement and any Terms Agreement exceed the number set forth in Section 1 or the number of Shares authorized from time to time to be issued and sold shares of Common Stock available for issuance under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(ii) If either any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
. The Manager shall calculate on a weekly basis the ADTV (das defined by Rule 100 of Regulation M under the Exchange Act) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms AgreementCommon Stock.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (American Financial Group Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to contained and the other terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) Shares. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE New York Stock Exchange (the "NYSE") (other than a day on which trading on the NYSE is scheduled to close prior to its regular weekday closing time)) from the date hereof to the earlier of May 15, (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company 2003, and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 termination of this AgreementAgreement pursuant to Section 6 hereof. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as reasonably agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares (as described defined in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g2(a), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell designated Shares. The gross sales price of any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to under this Agreement shall be the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf market price for shares of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed 's Common Stock sold by the Company and Agent under this Agreement on the Sales Agent.
(iv) NYSE at the time of such sale. The compensation to the Sales Agent, as an agent of the Company, Agent for sales of the Shares shall be up to 1.25at a fixed commission rate of 3% of the gross sales price of the any Shares sold pursuant to under this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “"Net Proceeds”").
. Notwithstanding the foregoing, the Company may instruct the Agent by telephone (vconfirmed promptly by telecopy) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Agent shall not be obligated to use its reasonable efforts to sell, any Shares at a price lower than the minimum price therefor designated from time to time by the Company's Board of Directors and provided to the Agent in writing. In addition, the Company or the Agent may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the sale of the Shares. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M ("Regulation M") under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the "Exchange Act") are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied to the reasonable satisfaction of each party. If the Company fails to meet the exemptive requirements set forth in Rule 101(c)(1) of Regulation M, it shall promptly notify the Agent. Sales of the Shares by the Company pursuant to the Agreement shall then cease until such time as the Company is in compliance with such exemptive provisions. The Sales Company or the Agent may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the sale of the Shares. Any suspension or termination effected by either party under this Agreement shall not affect or impair the parties' respective obligations with respect to Shares sold hereunder prior to the giving of such notice. The Agent hereby covenants and agrees not to make any sales of Shares on behalf of the Company other than by means of ordinary brokers' transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Securities Act. The Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) Agreement setting forth the amount number of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) . Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, date a “Settlement "Closing Date”"). On each Settlement Date, The amount of proceeds for such sales to be delivered to the Company against the receipt of the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company equal to the Sales Agent against payment aggregate sales prices at which such Shares were sold, net of the Net Proceeds Agent's compensation for the sale such sales and after deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such Sharessales. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the 's account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments by the Agent of the Net Proceeds of the sale of such Shares in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Closing Date, the Company shall (Ai) indemnify and hold the Sales Agent in respect of such sale harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Agent breaches this Agreement by failing to deliver Net Proceeds that have been paid by the purchaser of such Shares on any Closing Date for Shares delivered by the Company for all matters related to in accordance with this Agreement, the settlement Agent shall (i) hold the Company harmless against any loss, claim or damage arising from or as a result of such default by the transfer of Agent and (ii) pay the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At Company interest based on the effective overnight Federal Funds rate. On each Time of SaleClosing Date, Settlement Date and Representation on each Filing Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective representations representation, warranty, covenant and warranties other agreement contained in this Agreement. The Company covenants and agrees with the Agent that on or prior to the second business day after any date on which the Company shall file a Quarterly Report on Form 10-Q in respect of any quarter in which sales of shares of Common Stock were made by the Agent under this Agreement or by Brinson Patrick Securities Corporation ("Brinson Patrick"), undex x xxxxx xxxxxy agreement, dated as of Mxx 00, 0000 (xxe "Brinson Patrick Sales Agency Agreement"), between the Company anx Xxxxxxx Xxxxxck (each such date a "Filing Date"), the Company wixx (x) xxxxxx xn writing each representation, warranty, covenant and other agreement contained in this Agreement, (ii) file a prospectus supplement (each a "Prospectus Supplement") with the Securities and Exchange Commission (the "Commission") under the applicable paragraph of Rule 424(b) under the Securities Act of 1933, as amended, and the rules and regulations thereunder (the "Securities Act"), which Prospectus Supplement will set forth, with regard to such quarter, the number of shares of Common Stock sold through the Agent under this Agreement and through Brinson Patrick under the Brinson Patrick Sales Agency Agreement, xxx Xxx Xxxxxeds to the Xxxxxxx xxx xxx compensation paid by the Company with respect to sales of shares of Common Stock pursuant to this Agreement and the Brinson Patrick Sales Agency Agreement and (iii) deliver such nuxxxx xx xxxxxx of each such Prospectus Supplement to the NYSE as is required by such exchange. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional covenants and conditions specified in Section 8 Sections 3 and 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the The Company and the Agent each acknowledge that under the terms and conditions of the Brinson Patrick Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agency Agreement, the Company shall not offerhas agreed tx xxxxx xxx xxxl through Brinson Patrick, sell or deliveras an additional sales agent, or request the offer or saleup to 4,000,000 sxxxxx xx xxx Xxmmon Stock, of less any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure sold by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of under this Agreement, on the terms and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to conditions described in this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees Partnership and the Manager agree that the Partnership may from time to time seek to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the CompanyPartnership, the Shares Units on the following terms.
(i) The Shares Units are to be sold on a daily basis or otherwise as shall be agreed to by the Company Partnership and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company Partnership has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule B C hereto or after the execution of this Agreement in a certificate to be furnished by the Partnership to the Manager, as updated from time to time (the “Authorized Company Partnership Representatives”) to make such sales and (C) the Company Partnership has satisfied its obligations under Section 8 6 of this Agreement. The Company Partnership will designate the maximum amount number of the Shares Units to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount of Units available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares Units authorized from time to time to be issued and sold under this Agreement by the Company’s board Board of directorsDirectors of Enbridge Management, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Units designated on any day pursuant to all applicable instructions that have been provided by the Partnership in accordance with this Agreement; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any SharesUnits, and the Company Partnership acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares Units on behalf of the Company Partnership may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the CompanyPartnership, through any of the Authorized Company Partnership Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares Units if such sales cannot be effected at or above the price designated by the Company Partnership in any such instruction. In addition, the Company Partnership or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Units; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Units sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares Units on behalf of the CompanyPartnership, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the CompanyPartnership, for sales of the Shares Units shall be up to 1.252% of the gross sales price of the Shares Units sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company Partnership for such Shares Units (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company Partnership following the close of trading on the NYSE each day in which the Shares Units are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares Units sold on such day, the aggregate gross offering proceeds received from such sale, the aggregate Net Proceeds to the Company Partnership, and the aggregate compensation payable by the Company Partnership to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares Units pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third trading day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company Partnership and the Sales Agent Manager (each such date, a “Settlement Date”). As used in this Agreement, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Units sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company Partnership to the Sales Agent Manager against payment of the Net Proceeds for the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares Units by the Company Partnership or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designeedesignee (provided that the Manager shall have given the Partnership written notice of such designee prior to the Settlement Date), at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formUnits eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares Units on any Settlement Date, the Company Partnership shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company Partnership and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Partnership Representatives shall be the contact persons for the Company Partnership for all matters related to the settlement of the transfer of the Shares Units through DWAC for purposes of this Section 4(a)(vi3(vi).
(vii) At each Time of Sale, Sale and Settlement Date and Representation Date (as defined in Section 5(q))Date, the Company Partnership shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares Units on behalf of the Company Partnership shall be subject to the continuing accuracy of the representations and warranties of the Company Partnership herein, to the performance by the Company Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company Partnership wishes to issue and sell the Shares Units other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyPartnership, wishes to accept amended terms, the Sales Agent Manager and the Company Partnership will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. The terms of any proposed Placement shall not be binding on either party unless and until a definitive written Terms Agreement is executed by the Partnership and the Manager.
(i) Under no circumstances shall the Partnership cause or request the offer or sale of any Units if, after giving effect to the sale of such Units, the aggregate gross sales proceeds or the aggregate number of Shares the Units sold pursuant to this Agreement would exceed the number lesser of Shares (A) the amount set forth in Section 1, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board Board of directorsDirectors of Enbridge Management, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing. Under no circumstances shall the Partnership cause or request the Manager to offer or sell any Units at a price lower than the minimum price authorized from time to time by the Board of Directors of Enbridge Management, or a duly authorized committee thereof, and notified to the Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the SharesUnits, it shall promptly notify the other party and sales of the Shares Units under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares Units to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Units or delivery of instructions to offer and sell Units as are set forth herein and as may be mutually agreed upon by the Company Partnership and the Sales AgentManager, offers and sales of Units pursuant to this Agreement may shall not be requested by the Company Partnership and need not be made by the Sales Agent Manager at any time when or during any period in which the Company Partnership is or could be deemed to be, be in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company Partnership acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager will be successful in selling the SharesUnits, (B) the Sales Agent Manager will incur no liability or obligation to the Company Partnership or any other person or entity if it does not sell Shares Units for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Units in accordance with the terms of this Agreement, and (C) the Sales Agent Manager shall be under no obligation to purchase Shares Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent Manager and the CompanyPartnership.
Appears in 1 contract
Samples: Equity Distribution Agreement (Enbridge Energy Partners Lp)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on a best efforts basis at prevailing market prices, shares of Company Equity Securities during the Shares term of this Agreement on the following terms.
(i) The Shares are to terms set forth herein. Company Equity Securities will be sold on a daily basis or otherwise from time to time as shall be agreed described in the Registration Statement and Prospectus, in amounts and, subject to price limitations, as directed by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and Manager; provided that nothing in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by shall be construed to require the Company’s board Company to sell any shares of directors, or a duly authorized committee thereof, and notified to Company Equity Securities through the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”)Manager.
(iib) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the The Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic telecopy or e-mail) (or as otherwise agreed to by the Company and the Sales Agent), at any time and from time to time suspend the offering of the Shares; Company Equity Securities; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Company Equity Securities sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(ivc) The compensation to the Sales Agent, as an agent of the Company, Manager for sales of the Shares Company Equity Securities sold under this Agreement shall be at the rate of up to 1.25to: 3.0% of the gross sales price of the Shares sold pursuant per share (“Sales Proceeds”) as agreed to this Section 4(a) or such lower amount as otherwise mutually agreed upon in writing by the Company Sales Manager and the Sales Agent from time to timeCompany. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of to such sales, sale shall constitute the net proceeds to the Company for such Shares Company Equity Securities (the “Net Proceeds”). For purposes of the first sentence of this section 2.1(c), Sales Proceeds include sales proceeds from sales of Company Equity Securities by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(vd) The Company shall open and maintain a trading account or accounts (the “Trading Accounts”) at a clearing agent designated by the Sales Agent Manager to facilitate the transactions contemplated by this Agreement. The Net Proceeds from the sale of any Company Equity Securities shall provide written confirmation to be available in the Company following the close of trading Trading Accounts on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first third business day following the date on which such sales are made (or such other date day as may be agreed by the is industry practice for regular-way trading) following each sale of any Company and the Sales Agent Equity Securities (each such dateeach, a “Settlement Date”). On each Settlement Date, The Company shall effect the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares applicable number of shares of Company Equity Securities to an account or accounts designated by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, Manager at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) on or by such other means before the Settlement Date of delivery as may be mutually agreed upon by the parties hereto, which in all cases each sale hereunder. The Sales Manager’s compensation shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered withheld from the Sales Proceeds on each Settlement Date and shall be paid to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi)Manager.
(viie) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q))Date, the Company shall be deemed to have affirmed each of their respective representations representation, warranty, covenant and warranties other agreement contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company Manager under this Agreement shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 Article IV of this Agreement.
(if) If the Company wishes shall default on its obligation to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for deliver Company Equity Securities on any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended termsSettlement Date, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
shall (i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to hold the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) Manager harmless against any loss, claim or damage arising from or as a result of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon such default by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide pay the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity Manager any commission to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing which it would otherwise be entitled absent such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationdefault.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on a best efforts basis at prevailing market prices, shares of Company Equity Securities during the Shares term of this Agreement on the following terms.
(i) The Shares are to terms set forth herein. Company Equity Securities will be sold on a daily basis or otherwise from time to time as shall be agreed described in the Registration Statement and Prospectus, in amounts and, subject to price limitations, as directed by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”)SALES MANAGER; PROVIDED THAT NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO REQUIRE THE COMPANY TO SELL ANY SHARES OF COMPANY EQUITY SECURITIES THROUGH THE SALES MANAGER.
(iib) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the The Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic telecopy or e-mail) (or as otherwise agreed to by the Company and the Sales Agent), at any time and from time to time suspend the offering of the Shares; Company Equity Securities; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Company Equity Securities sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(ivc) The compensation to the Sales Agent, as an agent of the Company, Manager for sales of the Shares Company Equity Securities sold under this Agreement shall be at the rate of up to 1.25to: 3.0% of the gross sales price of the Shares sold pursuant per share (“Sales Proceeds”) as agreed to this Section 4(a) or such lower amount as otherwise mutually agreed upon in writing by the Company Sales Manager and the Sales Agent from time to timeCompany. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of to such sales, sale shall constitute the net proceeds to the Company for such Shares Company Equity Securities (the “Net Proceeds”). For purposes of the first sentence of this section 2.1(c), Sales Proceeds include sales proceeds from sales of Company Equity Securities by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(vd) The Company shall open and maintain a trading account or accounts (the “Trading Accounts”) at a clearing agent designated by the Sales Agent Manager to facilitate the transactions contemplated by this Agreement. The Net Proceeds from the sale of any Company Equity Securities shall provide written confirmation to be available in the Company following the close of trading Trading Accounts on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first third business day following the date on which such sales are made (or such other date day as may be agreed by the is industry practice for regular-way trading) following each sale of any Company and the Sales Agent Equity Securities (each such dateeach, a “Settlement Date”). On each Settlement Date, The Company shall effect the Shares sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares applicable number of shares of Company Equity Securities to an account or accounts designated by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, Manager at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) on or by such other means before the Settlement Date of delivery as may be mutually agreed upon by the parties hereto, which in all cases each sale hereunder. The Sales Manager’s compensation shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered withheld from the Sales Proceeds on each Settlement Date and shall be paid to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi)Manager.
(viie) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q))Date, the Company shall be deemed to have affirmed each of their respective representations representation, warranty, covenant and warranties other agreement contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company Manager under this Agreement shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 Article IV of this Agreement.
(if) If the Company wishes shall default on its obligation to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for deliver Company Equity Securities on any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended termsSettlement Date, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
shall (i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to hold the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) Manager harmless against any loss, claim or damage arising from or as a result of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon such default by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide pay the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity Manager any commission to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing which it would otherwise be entitled absent such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationdefault.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the ------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on a reasonable efforts basis, up to the Shares Maximum Amount of Stock on the following terms.
(i) terms set forth herein. The Shares are Stock, up to the Maximum Amount, is to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares Stock to be sold by the Sales Agent daily as reasonably agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that designated Stock up to the Sales Agent shall have no obligation to offer or sell any Shares, and Maximum Amount. Notwithstanding the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of foregoing the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy) not to sell the Shares Stock if such sales cannot be effected at or above the price designated by the Company in any such instruction; furthermore, the Company shall not authorize the issuance and sale of, and the Agent shall not be obligated to use its reasonable efforts to sell, any Stock at a price lower than the minimum price therefor designated from time to time by the Company's Board of Directors and notified to the Agent in writing. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agenttelecopy), suspend the offering of the Shares; Stock; provided, however, that such suspension or termination shall not -------- ------- affect or impair the parties’ ' respective obligations with respect to the Shares Stock sold hereunder prior to the giving of such notice.
(iii. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) The Sales Agent hereby covenants of Regulation M under the Exchange Act are not satisfied with respect to the Stock, it shall promptly notify the other party and agrees not to make any sales of the Shares on behalf of the Company, pursuant to Stock under this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Unless otherwise agreed by the Company and the Sales Agent.
, the Agent shall sell the Stock only by means of ordinary brokers' transactions on the American Stock Exchange (iv) the "AMEX"). Unless otherwise agreed to by the Company and the Agent, the Agent shall not solicit or arrange for the solicitation of customer's orders in anticipation of or in connection with such transactions, nor shall it sell short as principal shares of Stock of the Company, except in connection with customary market making activities in the Company's outstanding securities. The Agent shall not engage in any special selling efforts or selling methods relating to the Stock within the meaning of Rule 100 of Regulation M under the Exchange Act. The Agent shall calculate on a weekly basis the average daily trading volume of the Stock. The compensation to the Sales Agent, as an agent of the Company, Agent for sales of the Shares Stock shall be up to 1.25(i) 3.0% of the gross sales price of the Shares first 2,500,000 shares of Stock that may be sold pursuant to this Section 4(aAgreement, (ii) or such lower amount as otherwise mutually agreed upon by 2.5% of the Company gross sales price of the second 2,500,000 shares that may be sold pursuant to this Agreement, and (iii) 2.25% of the Sales Agent from time gross sales price of the remaining 1,065,000 shares that may be sold pursuant to timethis Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares Stock (the “"Net Proceeds”").
(v) . The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE AMEX each day in which the Shares are Stock is sold under this Section 4(a) Agreement setting forth the amount of the Shares Stock sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) . Settlement for sales of the Shares pursuant to this Section 4(a) Stock will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “"Settlement Date”"). On each Settlement Date, the Shares Stock sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company to the Sales Agent against payment of the Net Proceeds for the sale of such SharesStock. Settlement for all such Shares Stock shall be effected by free delivery of the Shares by the Company or its transfer agent Stock to the Sales Agent’s account, or to the 's account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, Corporation in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares Stock on any Settlement Date, the Company shall (Ai) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Agent breaches this Agreement by failing to deliver proceeds on any Settlement Date for Stock delivered by the Company, the Agent will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) effective overnight Federal Funds rate. At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q))Date, the Company shall be deemed to have affirmed each of their respective representations representation, warranty, covenant and warranties other agreement contained in this Agreement, and on each Filing Date (as defined below), the Company shall affirm in writing each representation, warranty, covenant and other agreement contained in this Agreement. The Company covenants and agrees with the Agent that on or prior to the second business day after the end of each calendar week during which sales of Stock were made by the Agent (each such week a "Reporting Period"), the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) (each a "Filing Date"), which prospectus supplement will set forth, with regard to such Reporting Period, the dates included within the Reporting Period, the amount of Stock sold through the Agent, the Net Proceeds to the Company and the compensation payable by the Company to the Agent with respect to sales of Stock pursuant to this Agreement and (ii) deliver such number of copies of each such prospectus supplement to the AMEX as are required by such Exchange. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company Stock shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Samples: Sales Agency Agreement (Impac Mortgage Holdings Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManagers, as sales agentagents, and the Sales Agent each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager through whom the sale of Shares is effected on that day, on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent such Manager by telephone (confirmed promptly by electronic mail) (mail or as otherwise other method mutually agreed to by the Company and the Sales Agentparties) from any of the individuals listed as an authorized representatives representative of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales sales, and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The On any Trading Day, the Company shall sell Shares through only one of the Managers, but in no event through more than one, and the Company shall give at least one business day prior written notice by facsimile, email or other method mutually agreed to by the parties to such Manager to notify it of any change of the Manager through whom the sale of Shares will be effected. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Company or the Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which any of Barclays, X.X. Xxxxxx, RBC, Scotiabank, or Xxxxx Fargo is acting for the Company in a capacity other than as Manager under this Agreement. On any Trading Day, the Company will designate the maximum amount number of the Shares to be sold by the Sales Agent daily Manager effecting the sales on that day, as agreed to by the Sales Agent and such Manager (in any event not in excess of the amount of Shares available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board Board of directorsDirectors, or a duly authorized committee thereof, and notified to the Sales Agent Managers in writing (a “Placement Notice”writing), and the minimum price per share at which such Shares may be sold. Subject to the terms and conditions hereof, the Sales Agent each Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated to be sold by such Manager on any day; provided, however, that the Sales Agent no Manager shall have no any obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Managers shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may may, in the judgment of the Sales Agent such Manager, constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent such Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager through whom the sale of Shares is to be effected on that day, by telephone (confirmed promptly by electronic mail) (mail or as otherwise other method mutually agreed to by the Company and the Sales Agent) parties), not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent Manager, may, upon notice to the other party parties hereto by telephone (confirmed promptly by electronic mail) (mail or as otherwise other method mutually agreed to by the Company and the Sales Agentparties), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Each of the Managers hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings Offerings, and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManagers.
(iv) The compensation to the Sales AgentManagers, as an agent of the Company, for sales of the Shares shall be up to 1.252% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount 3(a). The gross sales price of any Shares sold pursuant to this Agreement by a Manager acting as otherwise mutually agreed upon by sales agent of the Company and shall be the Sales Agent from market price prevailing at the time of sale for shares of the Company’s Common Stock sold by such Manager on the NYSE or otherwise, at prices relating to timeprevailing market prices or at negotiated prices. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager through whom sales are affected shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third Trading Day is not a business day (as defined below), then settlement will occur on the next succeeding Trading Day that is also a business day), unless another date as may shall be agreed upon by the Company and the Sales Agent Manager selling such Shares (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent such Manager against payment of the Net Proceeds for from the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agentapplicable Manager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager selling such Shares harmless against any loss, claim or damage (including reasonable legal fees and expenses) arising from or as a result of such default by the Company Company, and (B) pay the Sales Agent such Manager any commission commission, discount or other compensation to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)4(q) hereof), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent a Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Managers of the proposed terms of such Placement. If the Sales Agenta Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent such Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ic) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement would exceed the number lesser of Shares (i) the amount set forth in Section 1, (ii) the amount available for offer and sale under the currently effective Registration Statement, and (iii) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board Board of directorsDirectors, or a duly authorized committee thereof, and notified to the Sales Agent Managers in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares at a price lower than the minimum price authorized from time to time by the Company’s Board of Directors or a duly authorized committee thereof, and notified to the Managers in writing.
(iii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party party, and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent Managers shall be made in accordance with the terms of this Agreement or, if applicable, a the Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Shares or delivery of instructions to offer and sell Shares as are set forth herein and as may be mutually agreed upon by the Company and the Sales AgentManagers, offers and sales of Shares pursuant to this Agreement may shall not be requested by the Company and need not be made by the Sales Agent Managers (i) during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of this Agreement, would prohibit the purchase or sale of Common Stock by persons subject to such policy, (ii) during any other period in which the Company is is, or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale(iii) except as provided in Section 3(f) below, of any Shares pursuant to this Agreement at any time during the period from and including the time date (each, an “Announcement Date”) on which the Company issues shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods of operations (each, an “Earnings Announcement”) through and including the Representation Date time that occurs in connection with is 24 hours after the time that the Company filing files (a Quarterly Report “Filing Time”) a quarterly report on Form 10-Q or an Annual Report annual report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement.
(f) If the Company wishes to offer, unless sell or deliver Shares at any time during the period from and including an Announcement Date through and including the time that is 24 hours after the corresponding Filing Time, the Company shall first (i) prepare and deliver to the Sales Agent Managers (with a copy to counsel for the Sales AgentManagers) a Current Report on Form 8-K that includes which shall include substantially the same financial and related information that as was included set forth in such the relevant Earnings Announcement (other than any earnings projections and projections, similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales AgentManagers, and, prior to its filing, and obtain the written consent of the Sales Agent Managers to the filing thereof (such filing (which consent shall not to be unreasonably withheld), (ii) provide the Sales Agent Managers with the officers’ certificatescertificate, accountants’ letter and opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, counsel called for by Section 4 hereof, (iii) afford the Sales Agent Managers the opportunity to conduct a due diligence review in accordance with Section 5(v4(w) hereof prior to filing such Earnings 8-K hereof, and (iv) file (rather than furnish) such Earnings 8-K with the Commission, then the provisions of clause (iii) of Section 3(e) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of the relevant quarterly report on Form 10-Q or annual report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (Ai) the delivery of any officers’ certificatescertificate, accountants’ letter and opinions or and letters of counsel or accountants’ letter pursuant to this Section 4(g3(f) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report quarterly report on Form 10-Q or Annual Report annual report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, accountants’ letters and legal opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, Section 4 hereof, and (Bii) this Section 4(g3(f) shall in no way affect or limit the operation of the provisions of clauses (i) and (ii) of Section 4(d) hereof3(e), which shall have independent application.
(hg) The Company acknowledges and agrees that (Ai) there can be no assurance that the Sales Agent Managers will be successful in selling the Shares, (Bii) the Sales Agent Managers will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Managers to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (Ciii) the Sales Agent Managers shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent Managers and the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Duke Realty Limited Partnership/)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B C hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated by the Company.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction.
(iii) In addition, the Company or the Manager may suspend the offer and sale of the Shares pursuant to this Agreement by notifying the other party by telephone (confirmed promptly by electronic mail) to such effect (a “Notice of Temporary Suspension”), in which event the obligations of the Company to deliver the documents required by Section 6 of this Agreement shall be deemed suspended pursuant to the terms of this Agreement (provided, however, that such suspension shall not affect or impair the Sales Agent shall have no obligation parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such Notice of Temporary Suspension) until such date (the “Recommencement Date”) as the suspending party notifies the non-suspending party by telephone (confirmed promptly by electronic mail) that it wishes to recommence the offer or sell any Sharesand sale of the Shares pursuant to this Agreement (the “Recommencement Notice”). Upon the delivery of the Recommencement Notice by the Company, and the Company acknowledges shall deliver to the Manager the documents required by Section 6 of this Agreement on the Recommencement Date and thereafter in accordance with the terms of this Agreement as if no Notice of Temporary Suspension had been given; provided, however, that if the Manager was the suspending party then the Company shall not be obligated to provide the documents required by Section 6 of this Agreement until such time as the Company determines to recommence the offer and sale of the Shares pursuant to this Agreement by delivering a Recommencement Notice to the Manager.
(iv) The Manager hereby covenants and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale not to make any sales of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is Company, pursuant to this Section 3(a), other than (A) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager. The Company acknowledges and agrees that in the event a sale of the Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is not an At the Market Offering, the Company will provide to the Manager, at the Manager’s request and upon reasonable advance notice to the Company, on or prior to the Settlement Date (as defined below), the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 hereof, each dated the Settlement Date, and such other documents and information as the Manager shall reasonably request.
(ivv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares pursuant to this Section 3(a) shall be up to 1.252% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by specified in Schedule D attached hereto. Such rate of compensation shall not apply when the Company and the Sales Agent from time to timeManager acts as principal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(vvi) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vivii) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(vii).
(viiviii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(q)), the Company shall be deemed to have affirmed to the Manager that each of their respective representations representation and warranties warranty contained in or made pursuant to this AgreementAgreement is true and correct as of such time or date as though made at and as of such time or date. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number gross sales proceeds of the Shares sold pursuant to this Agreement exceed the amount set forth in Section 1 or the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale The Company shall provide the Manager with a copy of its policy on xxxxxxx xxxxxxx (“Xxxxxxx Xxxxxxx Policy”) and advise the Shares shall be effected by or through only one Manager in writing of the Agents on any single trading day.
(f) changes thereto. Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales AgentManager, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent Manager except during the period that begins after the filing of a quarterly report on Form 10-Q or an annual report on Form 10-K as of and within the period required by the Exchange Act (each such date, a “Filing Date”) and ends, for all periods, on the earlier of (i) the date directors and officers are no longer permitted to trade pursuant to the Company’s Xxxxxxx Xxxxxxx Policy as in effect from time to time and (ii) the end of the quarter in which the applicable Filing Date occurs. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Manager, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager will be successful in selling the Shares, (B) the Sales Agent Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as may otherwise be specifically agreed by the Sales Agent Manager and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManagers, as sales agentagents, and the Sales Agent each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager through whom the sale of Shares is effected on that day, on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Trading Day”), (B) the Company has instructed the Sales Agent such Manager by telephone (confirmed promptly by electronic mail) (mail or as otherwise other method mutually agreed to by the Company and the Sales Agentparties) from any of the individuals listed as an authorized representatives representative of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales sales, and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The On any Trading Day, the Company shall sell Shares through only one of the Managers, but in no event through more than one, and the Company shall give at least one business day prior written notice by facsimile, email or other method mutually agreed to by the parties to such Manager to notify it of any change of the Manager through whom the sale of Shares will be effected. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Company or the Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which any of BTIG, Citi, Xxxxxxxxx, Xxxxxx Xxxxxxx, Region, SunTrust, UBS and Xxxxx Fargo is acting for the Company in a capacity other than as Manager under this Agreement. On any Trading Day, the Company will designate the maximum amount number of the Shares to be sold by the Sales Agent daily Manager effecting the sales on that day, as agreed to by the Sales Agent and such Manager (in any event not in excess of the amount of Shares available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board Board of directorsDirectors, or a duly authorized committee thereof, and notified to the Sales Agent Managers in writing (a “Placement Notice”writing), and the minimum price per share at which such Shares may be sold. Subject to the terms and conditions hereof, the Sales Agent each Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated to be sold by such Manager on any day; provided, however, that the Sales Agent no Manager shall have no any obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Managers shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may may, in the judgment of the Sales Agent such Manager, constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent such Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager through whom the sale of Shares is to be effected on that day, by telephone (confirmed promptly by electronic mail) (mail or as otherwise other method mutually agreed to by the Company and the Sales Agent) parties), not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent Manager, may, upon notice to the other party parties hereto by telephone (confirmed promptly by electronic mail) (mail or as otherwise other method mutually agreed to by the Company and the Sales Agentparties), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Each of the Managers hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings Offerings, and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManagers.
(iv) The compensation to the Sales AgentManagers, as an agent of the Company, for sales of the Shares shall be up to 1.252% of the gross sales price (the “Managers’ Compensation”) of the Shares sold pursuant to this Section 4(a3(a). The gross sales price of any Shares sold (the “Gross Proceeds”) or such lower amount pursuant to this Agreement by a Manager acting as otherwise mutually agreed upon by sales agent of the Company and shall be the Sales Agent from market price prevailing at the time of sale for shares of the Company’s Common Stock sold by such Manager on the NYSE or otherwise, at prices relating to timeprevailing market prices or at negotiated prices. The remaining proceeds, after deducting the Managers’ Compensation and further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager through whom sales are affected shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares sold on such day, the aggregate Gross Proceeds to the Company, the aggregate Net Proceeds to the Company Company, and the compensation aggregate Managers’ Compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first business day second Trading Day following the date on which such sales are made or (provided that, if such other second Trading Day is not a business day (as defined below), then settlement will occur on the next succeeding Trading Day that is also a business day), unless another date as may shall be agreed upon by the Company and the Sales Agent Manager selling such Shares (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent such Manager against payment of (i) the Net Proceeds for or (ii) the Gross Proceeds from the sale of such Shares. In the event that the Manager delivers the Gross Proceeds to the Company at a Settlement Date, the Managers’ Compensation shall be set forth and invoiced in a periodic statement from the Manager to the Company and payment of such amounts shall be made promptly by the Company after its receipt thereof. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agentapplicable Manager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager selling such Shares harmless against any loss, claim or damage (including reasonable legal fees and expenses) arising from or as a result of such default by the Company Company, and (B) pay the Sales Agent such Manager any commission commission, discount or other compensation to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)4(q) hereof), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent a Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Managers of the proposed terms of such Placement. If the Sales Agenta Manager, acting as principalprincipal or underwriter, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent such Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ic) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate Gross Proceeds or the aggregate number of the Shares sold pursuant to this Agreement would exceed the number lesser of Shares (i) the amount set forth in Section 1, (ii) the amount available for offer and sale under the currently effective Registration Statement, and (iii) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board Board of directorsDirectors, or a duly authorized committee thereof, and notified to the Sales Agent Managers in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares at a price lower than the minimum price authorized from time to time by the Company’s Board of Directors or a duly authorized committee thereof, and notified to the Managers in writing.
(iid) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party party, and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(de) Each sale of the Shares to or through the Sales Agent Managers shall be made in accordance with the terms of this Agreement or, if applicable, a the Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Shares or delivery of instructions to offer and sell Shares as are set forth herein and as may be mutually agreed upon by the Company and the Sales AgentManagers, offers and sales of Shares pursuant to this Agreement may shall not be requested by the Company and need not be made by the Sales Agent Managers (i) during any period in which the Company is is, or could be deemed to be, in possession of material non-public information.
information or (gii) Notwithstanding any other provision of this Agreementexcept as provided in Section 3(g) below, during the period commencing on the 10th business day prior to the date (each, an “Announcement Date”) on which the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods of operations (each, an “Earnings Announcement”) through and including the Representation Date time that occurs in connection with is 24 hours after the time that the Company filing files (a Quarterly Report “Filing Time”) a quarterly report on Form 10-Q or an Annual Report annual report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement.
(g) If the Company wishes to offer, unless sell or deliver Shares at any time during the period from and including an Announcement Date through and including the time that is 24 hours after the corresponding Filing Time, the Company shall first (i) prepare and deliver to the Sales Agent Managers (with a copy to counsel for the Sales AgentManagers) a Current Report on Form 8-K that includes which shall include substantially the same financial and related information that as was included set forth in such the relevant Earnings Announcement (other than any earnings projections and projections, similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales AgentManagers, and, prior to its filing, and obtain the written consent of the Sales Agent Managers to the filing thereof (such filing (which consent shall not to be unreasonably withheld), (ii) provide the Sales Agent Managers with the officers’ certificatescertificate, accountants’ letter and opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, counsel called for by Section 4 hereof, (iii) afford the Sales Agent Managers the opportunity to conduct a due diligence review in accordance with Section 5(v4(w) hereof prior to filing such Earnings 8-K hereof, and (iv) file (rather than furnish) such Earnings 8-K with the Commission, then the provisions of clause (iii) of Section 3(f) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of the relevant quarterly report on Form 10-Q or annual report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (Ai) the delivery of any officers’ certificatescertificate, accountants’ letter and opinions or and letters of counsel or accountants’ letter pursuant to this Section 4(g3(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report quarterly report on Form 10-Q or Annual Report annual report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, accountants’ letters and legal opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, Section 4 hereof, and (Bii) this Section 4(g3(g) shall in no way affect or limit the operation of the provisions of clauses (i) and (ii) of Section 4(d) hereof3(f), which shall have independent application.
(h) The Company acknowledges and agrees that (Ai) there can be no assurance that the Sales Agent Managers will be successful in selling the Shares, (Bii) the Sales Agent Managers will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Managers to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (Ciii) the Sales Agent Managers shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent Managers and the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Duke Realty Limited Partnership/)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable best efforts to sell, as sales agent for the Company, the Shares on the following terms.:
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as reasonably agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable best efforts to offer and sell all of the designated Shares. The gross proceeds from sales of any Shares designated; sold under this Section 3(a) shall be based on the market price for shares of the Company's Common Stock sold by the Manager under this Section 3(a) on the NYSE at the time of such sale and the number of Shares sold by the Manager.
(ii) Notwithstanding the foregoing, the Company may, at any time and from time to time, instruct the Manager by telephone (confirmed promptly by telecopy) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable best efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company's Common Stock Committee of the Board of Directors and notified to the Manager in writing. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the Sales Agent shall have no obligation parties' respective obligations with respect to offer or sell the Shares sold hereunder prior to the giving of such notice. Written notice of reactivation will be required after any Shares, and such written notice of suspension before the Company acknowledges Manager will accept telephone instructions to resume the sale of Shares on a reasonable best efforts basis.
(iii) The Manager hereby covenants and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale not to make any sales of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is Company, pursuant to this Section 3(a), other than (a) by means of ordinary brokers’ ' transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-"At the Market Offerings”).
(ii") Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (Bb) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager. The Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a "block" under Rule 10b-18(a)(14) under the Exchange Act or a "distribution" within the meaning of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed an "underwriter" under the Act in a transaction that is not an At the Market Offering, the Company will provide to the Manager, at the Manager's request and upon reasonable advance notice to the Company, on or prior to the Settlement Date, the opinions of counsel, accountants' letters and officer's certificate pursuant to Section 5 hereof that the Company would be required to provide to the Manager in connection with a sale of Shares pursuant to a Terms Agreement, each dated the Settlement Date. The Manager hereby covenants and agrees that it shall not engage in a sale of Shares on the Company's behalf that would constitute the sale of a "block" or a "distribution", each as described above, without the Company's prior written consent.
(iv) The compensation to the Sales AgentManager for sales of Shares, as an agent of the Company, for sales of the Shares shall be up to 1.25_____% of the gross sales price of the Shares sold pursuant to this Section 4(a) or 3(a), and such lower amount rate of compensation shall not apply when the Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeprincipal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “"Net Proceeds”").
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount number of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager and any other fees deducted with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “"Settlement Date”"). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the Manager's account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (Aa) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bb) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons for the Company for all matters related Manager fails to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, deliver proceeds on any Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the for Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance delivered by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and Manager shall pay the Company will enter into a Terms Agreement setting forth interest on the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales amount of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares proceeds to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material nonentitled based on the effective overnight Federal Funds Rate (as defined below) plus twenty-public information.
(g) Notwithstanding any other provision five basis points until such proceeds plus interest are paid. For purposes of this Agreement, "Federal Funds Rate" means, for any day, the Company shall weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding business day by the Federal Reserve Bank of New York or, if such rate is not offerso published for any day that is a business day, sell or deliverthe average quotations, or request for the offer or saleday, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure transactions received by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms Manager from three Federal funds brokers of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed recognized standing selected by the Sales Agent and the Companyit.
Appears in 1 contract
Samples: Equity Distribution Agreement (Lucent Technologies Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Partnership agrees to issue and sell through or to the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the CompanyPartnership, the Shares Units on the following terms.
(i) The Shares Units are to be sold on a daily basis or otherwise as shall be agreed to by the Company Partnership and the Sales Agent Manager on any day that (A) is a trading day for the NYSE Nasdaq (as defined below) (a “Trading Day”) (other than a day Trading Day on which the NYSE Nasdaq Global Select Market (“Nasdaq”) is scheduled to close prior to its regular weekday closing time), (B) the Company Partnership has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule B C hereto (as may be updated by the Partnership from time to time) (the “Authorized Company Partnership Representatives”) to make such sales and (C) the Company has Capital Parties have satisfied its their obligations under Section 8 6 of this Agreement. The Company Partnership will designate the maximum amount number of the Shares Units to be sold by the Sales Agent daily Manager on any such day, as agreed to by the Sales Agent and Manager (in any event not in excess of the amount of Units available for issuance under the Prospectus and the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number and not in excess of the number amount of Shares Units authorized from time to time to be issued and sold under this Agreement by the Company’s board of directorsdirectors of the Partnership, or a duly authorized committee thereof, and the General Partner and notified to the Sales Agent Manager in writing writing) and the minimum price per Unit at which such Units may be sold (in any event not below the minimum price authorized from time to time under this Agreement by the board of directors of the Partnership, or a “Placement Notice”duly authorized committee thereof, and the General Partner and notified to the Manager in writing). Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Units designated on any day; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any SharesUnits, and the Company Partnership acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares Units on behalf of the Company Partnership may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE Nasdaq that qualify for delivery of a Prospectus to the NYSE Nasdaq in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”). The gross sales price of the Units sold under this Section 3(a) shall be the market price for the Partnership’s Units sold by the Manager under this Section 3(a) at the time of sale of such Units.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company The Partnership or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Units for any reason and at any time; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Units sold hereunder prior to the giving of such notice. During any such period of suspension, the Partnership shall not be obligated to deliver (or cause to be delivered) any of the documents referred to in Sections 4(q) to 4(y), be deemed to affirm any of the representations or warranties contained in this Agreement pursuant to Sections 3.8(a)(viii) or 4(ee) hereof, or be obligated to conduct any due diligence session as referred to in Section 4(z) until the termination of the suspension and the recommencement of the offering of the Units pursuant to this Agreement (which recommencement shall constitute a Representation Date, as defined in Section 4(p)).
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares Units on behalf of the CompanyPartnership, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership, the General Partner and the Sales AgentManager. The Manager shall not sell, and the Partnership shall not issue, fractional units.
(iv) The compensation to the Sales AgentManager, as an agent of the CompanyPartnership, for sales of the Shares Units shall be up to 1.252.0% of the gross sales price of the Shares Units sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company Partnership for such Shares Units (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company Partnership following the close of trading on the NYSE Nasdaq each day in which the Shares Units are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares Units sold on such day, the aggregate gross sale proceeds to the Partnership, the Net Proceeds to the Company Partnership, and the aggregate compensation payable by the Company Partnership to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares Units pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third Trading Day is not a business day (as defined below), then settlement will occur on the next succeeding Trading Day that is also a business day), unless another date as may shall be agreed upon by the Company Partnership and the Sales Agent Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Units sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company Partnership to the Sales Agent Manager against payment of the Net Proceeds for the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares Units by the Company Partnership or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCommon Units eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares Units on any Settlement Date, the Company Partnership shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company Partnership and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. If the Manager breaches this Agreement by failing to deliver the aggregate Net Proceeds to the Partnership on any Settlement Date for the Units delivered by the Partnership, the Manager will pay the Partnership interest based on the effective overnight federal funds rate on such unpaid amount. The Authorized Company Partnership Representatives shall be the contact persons for the Company Partnership for all matters related to the settlement of the transfer of the Shares Units through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) Subject to the terms of a Terms Agreement, the Manager may sell the Units (i) by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Act, including without limitation sales made directly on any existing trading market for the Common Units, (ii) to or through a market maker, or (iii) directly on or through an electronic communication network, a “dark pool” or any similar market venue. Subject to the terms of a Terms Agreement, the Manager may also sell the Units by any other method permitted by law, including but not limited to in privately negotiated transactions.
(viii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(p)), the Company Capital Parties shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date but modified to incorporate the disclosures contained or incorporated by reference in the Registration Statement and the Prospectus, in each case as amended or supplemented as of such date. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares Units on behalf of the Company Partnership shall be subject to the continuing accuracy of the representations and warranties of the Company Capital Parties herein, to the performance by the Company Capital Parties of its their obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company Partnership wishes to issue and sell the Shares Units other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyPartnership, wishes to accept amended terms, the Sales Agent Manager and the Company Partnership will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. The parties hereto agree that any entry into a Terms Agreement shall require the consent of the board of directors of the Partnership and the General Partner, and, in certain instances, CCC and CCOC.
(i) Under no circumstances shall the Partnership cause or request the offer or sale of any Units if, after giving effect to the sale of such Units, the aggregate gross sales proceeds or the aggregate number of Shares the Units sold pursuant to this Agreement would exceed the number lesser of Shares (A) the amount set forth in Section 1, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the CompanyPartnership’s board of directors, or a duly authorized committee thereofthereof and the General Partner, and notified to the Sales Agent Manager in writing (in which case the Manager shall not sell any such Units). Under no circumstances shall the Partnership cause or request the offer or sale of any Units at a price lower than the minimum price authorized from time to time by the Partnership’s board of directors or a duly authorized committee thereof or the General Partner, and notified to the Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the SharesUnits, it shall promptly notify the other party and sales of the Shares Units under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares Units to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement. Notwithstanding anything herein to the contrary, the Manager shall not purchase or sell pursuant to a Terms Agreement, and the Partnership shall not issue, fractional units.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Units or delivery of instructions to offer and sell Units as are set forth herein and as may be mutually agreed upon by the Company Partnership and the Sales AgentManager, offers and sales of Units pursuant to this Agreement may shall not be requested by the Company Partnership and need not be made by the Sales Agent Manager at any time when or during any period in which the Company Partnership is or could be deemed to be, be in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company acknowledges Capital Parties acknowledge and agrees agree that (A) there can be no assurance that the Sales Agent Manager will be successful in selling the SharesUnits, (B) the Sales Agent Manager will incur no liability or obligation to the Company Partnership or any other person or entity if it does not sell Shares Units for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Units in accordance with the terms of this Agreement, and (C) the Sales Agent Manager shall be under no obligation to purchase Shares Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent Manager and the CompanyPartnership.
Appears in 1 contract
Samples: Equity Distribution Agreement (Capital Product Partners L.P.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed mail to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B D hereto (the “Authorized Company Representatives”)) to make such sales and (C) the Company has satisfied its obligations under Section 8 5 of this Agreement. The Company will designate the maximum amount number of the Shares to be sold by the Sales Agent Manager daily or as otherwise agreed to by the Sales Agent Manager and the Company and in any event not in excess of the amount of Shares available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated on any day; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by mail from the Company and the Sales AgentCompany) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction, which price shall not be below the par value of the Common Stock. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agentmail from such party), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.252% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company as soon as practicable following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third trading day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company and the Sales Agent Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 6 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement or as set forth in Section 3(a) of any Alternative Equity Distribution Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ii) In the event the Company engages the Manager for a sale of Shares that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act, the Company and the Manager will agree to compensation that is customary for the Manager with respect to such transactions.
(i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement and any Alternative Equity Distribution Agreement would exceed the number lesser of Shares (A) the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement and any Alternative Equity Distribution Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and notified to the Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Alternative Equity Sales Distribution Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Manager (which such request may be by electronic mail), the Manager shall promptly calculate and provide in writing to the Company a report setting forth, for the prior week, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(d) Each sale of the Shares to or through the Sales Agent Manager or any Alternative Manager, as applicable, shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement, or the respective Alternative Equity Distribution Agreement or, if applicable, an Alternative Terms Agreement, as applicable.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Shares or delivery of instructions to offer and sell Shares as are set forth herein herein, or in any Alternative Equity Distribution Agreement, and as may be mutually agreed upon by the Company and the Sales AgentManager or any Alternative Manager, as applicable, offers and sales of Shares pursuant to this Agreement may or any Alternative Equity Distribution Agreement, as applicable, shall not be requested by the Company and need not be made by the Sales Agent Manager or any Alternative Manager, as applicable, at any time when or during any period (i) in which the Company is or could be deemed to be, be in possession of material non-public information.
, (gii) Notwithstanding any other provision the Company’s xxxxxxx xxxxxxx policy, as then in effect, would prohibit the purchases or sales of the Company’s Common Stock by its officer or directors; provided that, for purposes of this Agreementclause (ii), such period shall be deemed to end on the date that is two (2) days after the date on which the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for of operations, unless the Company provides prior written notice to the Manager of a fiscal period change in its xxxxxxx xxxxxxx policy or periods an extension of the prohibition of purchases and sales thereunder or (iii) from and including the date on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the Representation Date time that occurs in connection with is 24 hours after the time that the Company filing files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first except, for purposes of this clause (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”iii), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent accordance with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with protocol regarding the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationDistribution Agreements.
(hf) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager or any Alternative Manager will be successful in selling the Shares, (B) neither the Sales Agent Manager nor any Alternative Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Manager or any Alternative Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement or any Alternative Equity Distribution Agreement, as applicable, and (C) neither the Sales Agent Manager nor any Alternative Manager shall be under no any obligation to purchase Shares on a principal basis pursuant to this Agreement or any Alternative Equity Distribution Agreement, as applicable, except as otherwise specifically agreed in writing by the Sales Agent Manager and the Company or any Alternative Manager and the Company, as applicable.
(g) The Company agrees that, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Shares or sales of Common Stock in Rule 415(a)(4) Offerings shall only be effected by or through the Manager or an Alternative Manager, but in no event by more than one Manager on any single given day, and the Company shall in no event request that the Manager or any Alternative Manager sell Shares on the same day.
Appears in 1 contract
Samples: Equity Distribution Agreement (Omega Healthcare Investors Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE Nasdaq (other than a day on which the NYSE Nasdaq is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated. The gross sales of the Shares sold under this Section 3(a) shall be the market price for shares of the Company’s Common Stock sold by the Manager under this Section 3(a) on the Nasdaq at the time of such sale.
(ii) Notwithstanding the foregoing, the Company may instruct the Manager by telephone (confirmed promptly by telecopy) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors and notified to the Manager in writing. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the Sales Agent parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of ordinary brokers’ transactions between members of the Nasdaq that qualify for delivery of a Prospectus to the Nasdaq in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At the Market Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall have no obligation to offer or sell any Shares, be agreed by the Company and the Manager. The Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or a sale of the Shares on behalf of the Company may in the judgment of the Sales Agent would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of not an At the NYSE that qualify for delivery of a Prospectus Market Offering, the Company will provide to the NYSE in accordance with Rule 153 under Manager, at the Act (such transactions are hereinafter referred Manager’s request and upon reasonable advance notice to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (on or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving Settlement Date, the opinions of such notice.
(iii) The Sales Agent hereby covenants counsel, accountants’ letters and agrees not officers’ certificates pursuant to make any sales Section 5 hereof that the Company would be required to provide to the Manager in connection with a sale of the Shares on behalf of the Company, pursuant to this Section 4(a)a Terms Agreement, other than (A) by means of At-the-Market Offerings each dated the Settlement Date, and (B) such other sales of documents and information as the Shares on behalf of the Company in its capacity as agent of the Company as Manager shall be agreed by the Company and the Sales Agentreasonably request.
(iv) The compensation to the Sales AgentManager for sales of the Shares, as an agent of the Company, for sales of the Shares shall be up to 1.254% of the gross sales price of the Shares sold pursuant to this Section 4(a) or 3(a), and such lower amount rate of compensation shall not apply when the Manager acts as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeprincipal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE Nasdaq each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi)effective overnight Federal Funds rate.
(vii) At each Time of Sale, Settlement Date and Representation Filing Date (as defined in Section 5(q)below), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. The Company covenants and agrees with the Manager that (A) with respect to each of the Company’s first three fiscal quarters, on or prior to the date on which the Company shall be obligated to file a quarterly report on Form 10-Q in respect of such quarter and (B) with respect to the Company’s fourth fiscal quarter for fiscal year 2009 and for each year thereafter, on or prior to the thirty-fifth day after the end of such quarter in which sales of the Shares were made by the Manager pursuant to this Section 3(a) (each such date, a “Filing Date”), the Company will file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b), which prospectus supplement will set forth, with regard to such quarter, the number of the Shares sold through the Manager as agent pursuant to this Section 3(a) in At the Market Offerings, the Net Proceeds to the Company and the compensation paid by the Company with respect to such sales of the Shares pursuant to this Section 3(a) and deliver such number of copies of each such prospectus supplement to the Nasdaq as are required by such exchange. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any a Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of the Shares sold pursuant to this Agreement and any Terms Agreement exceed the number set forth in Section 1 or the number of Shares authorized from time to time to be issued and sold shares of the Common Stock available for issuance under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.[Intentionally Omitted]
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement orand, if applicable, a Terms Agreement.
(e) Any offer, solicitation or which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares shall to be effected purchased by or through only one the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company Shares, and the Sales Agent, sales pursuant time and date (each such time and date being referred to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession herein as a “Time of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings AnnouncementDelivery”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as place of delivery of and payment for the same fiscal period or periodssuch Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data accountants' letters and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter certificates pursuant to this Section 4(g) shall not relieve the Company from any 5 of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person information or entity if it does not sell Shares for any reason other than a failure documents required by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the CompanyManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Hoku Scientific Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees Partnership and the Manager agree that the Partnership may from time to time seek to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the CompanyPartnership, the Shares Units on the following terms.
(i) The Shares Units are to be sold on a daily basis or otherwise as shall be agreed to by the Company Partnership and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company Partnership has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule B C hereto or after the execution of this Agreement in a certificate to be furnished by the Partnership to the Manager, as updated from time to time (the “Authorized Company Partnership Representatives”) to make such sales and (C) the Company Partnership has satisfied its obligations under Section 8 6 of this Agreement. The Company Partnership will designate the maximum amount number of the Shares Units to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount of Units available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares Units authorized from time to time to be issued and sold under this Agreement by the Company’s board Board of directorsDirectors of Enbridge Management, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Units designated on any day pursuant to all applicable instructions that have been provided by the Partnership in accordance with this Agreement; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any SharesUnits, and the Company Partnership acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares Units on behalf of the Company Partnership may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the CompanyPartnership, through any of the Authorized Company Partnership Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares Units if such sales cannot be effected at or above the price designated by the Company Partnership in any such instruction. In addition, the Company Partnership or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Units; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Units sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares Units on behalf of the CompanyPartnership, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the CompanyPartnership, for sales of the Shares Units shall be up to 1.252 % of the gross sales price of the Shares Units sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company Partnership for such Shares Units (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company Partnership following the close of trading on the NYSE each day in which the Shares Units are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares Units sold on such day, the aggregate gross offering proceeds received from such sale, the aggregate Net Proceeds to the Company Partnership, and the aggregate compensation payable by the Company Partnership to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares Units pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third trading day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company Partnership and the Sales Agent Manager (each such date, a “Settlement Date”). As used in this Agreement, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Units sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company Partnership to the Sales Agent Manager against payment of the Net Proceeds for the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares Units by the Company Partnership or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designeedesignee (provided that the Manager shall have given the Partnership written notice of such designee prior to the Settlement Date), at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formUnits eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares Units on any Settlement Date, the Company Partnership shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company Partnership and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Partnership Representatives shall be the contact persons for the Company Partnership for all matters related to the settlement of the transfer of the Shares Units through DWAC for purposes of this Section 4(a)(vi3(vi).
(vii) At each Time of Sale, Sale and Settlement Date and Representation Date (as defined in Section 5(q))Date, the Company Partnership shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares Units on behalf of the Company Partnership shall be subject to the continuing accuracy of the representations and warranties of the Company Partnership herein, to the performance by the Company Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company Partnership wishes to issue and sell the Shares Units other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyPartnership, wishes to accept amended terms, the Sales Agent Manager and the Company Partnership will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. The terms of any proposed Placement shall not be binding on either party unless and until a definitive written Terms Agreement is executed by the Partnership and the Manager.
(i) Under no circumstances shall the Partnership cause or request the offer or sale of any Units if, after giving effect to the sale of such Units, the aggregate gross sales proceeds or the aggregate number of Shares the Units sold pursuant to this Agreement would exceed the number lesser of Shares (A) the amount set forth in Section 1, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board Board of directorsDirectors of Enbridge Management, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing. Under no circumstances shall the Partnership cause or request the Manager to offer or sell any Units at a price lower than the minimum price authorized from time to time by the Board of Directors of Enbridge Management, or a duly authorized committee thereof, and notified to the Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the SharesUnits, it shall promptly notify the other party and sales of the Shares Units under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares Units to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Units or delivery of instructions to offer and sell Units as are set forth herein and as may be mutually agreed upon by the Company Partnership and the Sales AgentManager, offers and sales of Units pursuant to this Agreement may shall not be requested by the Company Partnership and need not be made by the Sales Agent Manager at any time when or during any period in which the Company Partnership is or could be deemed to be, be in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company Partnership acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager will be successful in selling the SharesUnits, (B) the Sales Agent Manager will incur no liability or obligation to the Company Partnership or any other person or entity if it does not sell Shares Units for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Units in accordance with the terms of this Agreement, and (C) the Sales Agent Manager shall be under no obligation to purchase Shares Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent Manager and the CompanyPartnership.
Appears in 1 contract
Samples: Equity Distribution Agreement (Enbridge Energy Partners Lp)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B C hereto (the “Authorized Company Representatives”) to make such sales sales, which order shall (1) specify any price, time or size limits or other customary parameters or conditions, and (2) be confirmed by the Manager (and accepted by the Company) by electronic mail using a form substantially similar to that attached as Exhibit C hereto (a “Transaction Notice”), and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount number of the Shares to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent and shall not in any event not in excess of exceed the amount of Shares available for issuance under the currently effective Registration Statement relating to or exceed the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated on any day; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.251.0% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third Trading Day is not a business day (as defined below), then settlement will occur on the next succeeding Trading Day that is also a business day), unless another date as may shall be agreed upon by the Company and the Sales Agent Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(q)), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement, except such representations and warranties that speak as of a specific date, as set forth in Sections 2(d), 2(e) and 2(h). Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, except such representations and warranties that speak as of a specific date, as set forth in Sections 2(d), 2(e) and 2(h), to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement would exceed the number lesser of Shares (A) the amount set forth in Section 1, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and notified to the Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Shares or delivery of instructions to offer and sell Shares as are set forth herein and as may be mutually agreed upon by the Company and the Sales AgentManager, offers and sales of Shares pursuant to this Agreement may shall not be requested by the Company and need not be made by the Sales Agent Manager at any time when or during any period in which the Company is or could be deemed to be, be in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager will be successful in selling the Shares, (B) the Sales Agent Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent Manager and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Partnership agrees to issue and sell through the Sales AgentManagers, as sales agentagents, and the Sales Agent each Manager agrees to use its commercially reasonable efforts to sell, as sales agent agents for the CompanyPartnership, the Shares Units on the following terms.
(i) The Shares Units are to be sold on a daily basis or otherwise as shall be agreed to by the Company Partnership and the Sales Agent such Manager on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company Partnership has instructed the Sales Agent such Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule B D hereto (the “Authorized Company Partnership Representatives”) to make such sales and (C) the Company Partnership has satisfied its obligations under Section 8 6 of this Agreement. The Company Partnership will designate the maximum amount number of the Shares Units to be sold and the minimum price per Unit at which such Units may be sold by the Sales Agent such Manager daily as agreed to by the Sales Agent such Manager and in any event not in excess of the amount of Units available for issuance under the currently effective Registration Statement relating to and the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, Prospectus or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares Units authorized from time to time to be issued and sold under this Agreement by the CompanyETP LLC’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent such Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent such Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Units designated on any day; provided, however, that the Sales Agent such Manager shall have no obligation to offer or sell any SharesUnits, and the Company Partnership acknowledges and agrees that the Sales Agent such Manager shall have no such obligation, in the event an offer or sale of the Shares Units on behalf of the Company Partnership may in the judgment of the Sales Agent such Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent such Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”)Act.
(ii) Notwithstanding the foregoing, the CompanyPartnership, through any of the Authorized Company Partnership Representatives, may instruct the Sales Agent such Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares Units if such sales cannot be effected at or above the price designated by the Company Partnership in any such instruction. In addition, the Company Partnership or the Sales Agent such Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Units for any reason and at any time (a “Suspension”); provided, however, that such suspension Suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Units sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Each Manager hereby covenants and agrees not to make any sales of the Shares Units on behalf of the CompanyPartnership, pursuant to this Section 4(a3(a), other than (A) by means of At-the-Market Offerings any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act, including, without limitation, sales made directly on the NYSE, on any other existing trading market for the Common Units or to or through a market maker, (B) by any other method permitted by law, including, without limitation, in privately negotiated transactions, and (BC) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership and the Sales Agentsuch Manager.
(iv) The compensation to the Sales Agenteach Manager, as an agent of the CompanyPartnership, for sales of the Shares Units shall be up to 1.252% of the gross sales price of the Shares Units sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon to in writing by the Company such Manager(s) and the Sales Agent from time to timePartnership. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company Partnership for such Shares Units (the “Net Proceeds”).
(v) The Sales Agent Each Manager acting as a sales agent hereunder shall provide written confirmation to the Company Partnership following the close of trading on the NYSE each day in which the Shares Units are sold under this Section 4(a) 3(a), setting forth (i) the amount aggregate number of the Shares Units sold on such day, (ii) the aggregate Net Proceeds to the Company Partnership from the sale of the Units on such day, and (iii) the aggregate compensation payable by the Company Partnership to the Sales Agent such Manager with respect to such sales.
(vi) Settlement for sales of the Shares Units pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third trading day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company Partnership and the Sales Agent such Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Units sold through the Sales Agent such Manager for settlement on such date shall be issued and delivered by the Company Partnership to the Sales Agent such Manager against payment of the Net Proceeds for the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares Units by the Company Partnership or its transfer agent to the Sales Agentsuch Manager’s account, or to the account of the Sales Agentsuch Manager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formunits eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares Units on any Settlement Date, the Company Partnership shall (A) indemnify and hold the Sales Agent such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company Partnership and (B) pay the Sales Agent such Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Partnership Representatives shall be the contact persons for the Company Partnership for all matters related to the settlement of the transfer of the Shares Units through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(q)), the Company Partnership shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent any Manager to use its commercially reasonable efforts to sell the Shares Units on behalf of the Company Partnership shall be subject to the continuing accuracy of the representations and warranties of the Company Partnership herein, to the performance by the Company Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company Partnership wishes to issue and sell the Shares Units other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent a Manager of the proposed terms of such Placement. If the Sales Agentsuch Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyPartnership, wishes to accept amended terms, the Sales Agent such Manager and the Company Partnership will enter into a Terms Agreement setting forth the terms of such Placement, and such Terms Agreement will not be binding on the Partnership or such Manager unless and until the Partnership and such Manager have executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the Partnership cause or request the offer or sale of any Units if, after giving effect to the sale of such Units, the aggregate number of Shares sold gross sales proceeds pursuant to this Agreement would exceed the number lesser of Shares (A) the amount set forth in Section 1, (B) the amount available for offer and sale under the currently effective Registration Statement and the Prospectus and (C) the amount authorized from time to time to be issued and sold under this Agreement by the CompanyETP LLC’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Managers in writing. Under no circumstances shall the Partnership cause or request the offer or sale of any Units at a price lower than the minimum price authorized from time to time by ETP LLC’s board of directors or a duly authorized committee thereof, and notified to the Managers in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the SharesUnits, it shall promptly notify the other party and sales of the Shares Units under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares Units to or through the Sales Agent any Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the such further limitations on offers and sales of Units or delivery of instructions to offer and sell Units as are set forth herein and as may be mutually agreed upon by the Company Partnership and any Manager, the Sales AgentPartnership shall not request the sale of any Units that would be sold, sales pursuant and no Manager shall be obligated to this Agreement may not be requested by sell, (i) during the Company and need not be made by 14 calendar days prior to the Sales Agent during any period in date (each, an “Announcement Date”) on which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company Partnership shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods of operations (each, an “Earnings Announcement”), (ii) at any time from and including an Announcement Date through and including the Representation Date time that occurs in connection with is 24 hours after the Company filing time that the Partnership files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, or (iii) during any other period in which the Partnership is, or could be deemed to be, in possession of material non-public information; provided that, unless otherwise agreed between the Company shall first Partnership and any Manager, for purposes of (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide above, such period shall be deemed to end 24 hours after the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationnext subsequent Filing Time.
(hf) The Company Partnership acknowledges and agrees that (A) there can be no assurance that the Sales Agent any Manager will be successful in selling the SharesUnits, (B) the Sales Agent no Manager will incur no any liability or obligation to the Company Partnership or any other person or entity if it such Manager does not sell Shares Units for any reason other than a failure by the Sales Agent such Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Units in accordance with the terms of this Agreement, and (C) the Sales Agent each Manager shall be under no obligation to purchase Shares Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent such Manager and the CompanyPartnership.
Appears in 1 contract
Samples: Equity Distribution Agreement (Energy Transfer Partners, L.P.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE New York Stock Exchange (the “NYSE”) (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company through any of the individuals identified as authorized representatives of the Company in a certificate to be furnished by the Company to the Manager, as updated from time to time (the “Authorized Company Representatives”), has instructed the Sales Agent individuals identified by the Manager as authorized representatives of the Manager in a certificate to be furnished by the Manager to the Company, as updated from time to time (“Authorized Manager Representatives”), by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”)Statement. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”)designated.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Authorized Manager Representatives by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Shares; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, Company pursuant to this Section 4(a3(a), other than (A) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a prospectus to the NYSE in accordance with Rule 153 of the Rules (such transactions are hereinafter referred to as “At-the-Market Offerings Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager. The Manager has no obligations under Section 3(a)(i) to effect: (A) a sale of Shares on behalf of the Company that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act, (B) an offer or sale of Shares on behalf of the Company that would constitute a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act, or (C) an offer or sale in which the Manager reasonably believes it would be an “underwriter” under the Act in a transaction pursuant to this Agreement that is not an At-the-Market Offering.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares pursuant to this Section 3(a) shall be up to 1.252% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by specified in Schedule A attached hereto. Such rate of compensation shall not apply when the Company and the Sales Agent from time to timeManager acts as principal. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount of the Shares sold on such day, the aggregate gross sales proceeds, any transaction fees deducted pursuant to Section 3(a)(iv), the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”)) at such time on the applicable Settlement Date as the Company and the Manager may mutually agree. On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formListed Shares, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if as applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(a)(vi). If the Manager breaches this Agreement by failing to deliver proceeds on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company interest based on the effective overnight Federal Funds rate.
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(n)), the Company Company, the Partnership and KMI shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company Company, the Partnership and KMI herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(viii) The Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company. The Company hereby acknowledges that the Manager may trade in the Listed Shares for the Manager’s own account and for the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Partnership or the Manager unless and until the Partnership and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any a Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number gross sales proceeds of the Shares sold pursuant to this Agreement exceed the number dollar amount set forth in Section 1, nor shall the price of the Shares so sold exceed the price parameters, if any, authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(iii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales AgentManager, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent Manager except during the period that begins after the filing of a quarterly report on Form 10-Q or an annual report on Form 10-K as of and within the period required by the Exchange Act, provided that, in the case of quarterly reports on Form 10-Q and annual reports on Form 10-K, only the filing date of the report last filed for such period by the Company, the Partnership and KMI shall apply for such purposes (each such date, a “Filing Date”) and ends, for all periods, on the earlier of (i) the date directors and officers are no longer permitted to trade pursuant to the Company’s policy on xxxxxxx xxxxxxx as in effect from time to time and (ii) the end of the quarter in which the applicable Filing Date occurs. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Manager, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Kinder Morgan Management LLC)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentAgents, as sales agentagents, and the Sales each Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales such Agent on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales such Agent by electronic mail or by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B C hereto (as may be amended from time to time by the Company by written notice to the Agents) (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount number of the Shares to be sold by the Sales such Agent daily as agreed to by the Sales such Agent and in any event not in excess of the amount of Shares available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales such Agent in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated on any day; provided, however, that the Sales such Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees the Operating Partnership acknowledge and agree that the Sales such Agent shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales such Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales such Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales such Agent by electronic mail or by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales such Agent may, upon notice to the other party hereto by electronic mail or by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Each Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales such Agent.
(iv) The compensation to the Sales each Agent, as an agent of the Company, for sales of the Shares shall be up to 1.251.5% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Each Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales such Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first business day second Trading Day following the date on which such sales are made or (provided that, if such other second Trading Day is not a business day (as defined below), then settlement will occur on the next succeeding Trading Day that is also a business day), unless another date as may shall be agreed upon by the Company and the Sales such Agent (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Sales such Agent for settlement on such date shall be issued and delivered by the Company to the Sales such Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales such Agent’s account, or to the account of the Sales such Agent’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company and the Operating Partnership shall (A) indemnify and hold the Sales such Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales such Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(q)), the Company and the Operating Partnership shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement, other than those contained in Sections 2(e) and 2(i) above. Any obligation of the Sales any Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of its their obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales an Agent of the proposed terms of such Placement. If the Sales such Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales such Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(c) i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement would exceed the number lesser of Shares (A) the amount set forth in Section 1, (B) the amount then available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued offered and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Agents in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it . Under no circumstances shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, cause or request the offer or sale, sale of any Shares pursuant at a price lower than the minimum price authorized from time to this Agreement at any time during by the period from Company’s board of directors or a duly authorized committee thereof, and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver notified to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included Agents in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationwriting.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Global Net Lease, Inc.)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell Securities from time to time through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares Securities on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by Each time that the Company and the Sales Agent wishes to sell Securities on any day that (A) is a trading day for the NYSE Nasdaq Global Select Market (a “Trading Day”) (other than a day Trading Day on which the NYSE Nasdaq Global Select Market is scheduled to close prior to its regular weekday closing time) pursuant to this Agreement (each, a “Placement”), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to instruct the Sales Agent in writing of the parameters in accordance with which it desires Securities to be sold, which shall at a minimum include the number of Securities to be offered, the time period during which sales are requested to be made, the minimum price below which sales may not be made and any limitation on the number of Securities that may be sold in any one day (a “Placement Notice”). The Sales Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same business day (as defined below) on which such Placement Notice is delivered to the Sales Agent, issue to the Company a notice by email addressed to all of the Authorized Representatives (as defined below) confirming all of the parameters of the Placement. The Placement Notice shall be effective upon receipt by any of the Authorized Representatives of the email notice from the Sales Agent, unless and until (i) the entire amount of the Securities covered by the Placement Notice have been sold, (ii) in accordance with Section 2(a)(ii) hereof, the Company or the Sales Agent suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) this Agreement has been terminated under the provisions of Section 9. Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; Securities designated in the Placement Notice; provided, however, that the Sales Agent shall have no obligation to offer or sell any SharesSecurities, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, obligation in the event an offer or sale of the Shares Securities on behalf of the Company may in the judgment of the Sales Agent constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act 1934 Act, or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange 1934 Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is other than (A) by means of ordinary brokers’ transactions between members of the NYSE Nasdaq Global Select Market that qualify for delivery of a Prospectus to the NYSE Nasdaq Global Select Market in accordance with Rule 153 under the 1933 Act or (such B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the transactions described in (A) and (B) are hereinafter referred to as “At-the-At the Market Offerings”). In the event of a conflict between the terms of this Agreement and the terms of any Placement Notice, the terms of such Placement Notice will control.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agentmail from such party), suspend the offering of the Shares; Securities pursuant to this Agreement or suspend or terminate a previously issued Placement Notice; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares Securities sold hereunder prior to the giving of such notice. Each of the parties agrees that no such notice shall be effective against the other unless it is made to one of its authorized representatives as set forth on Schedule A hereto (the “Authorized Representatives”), as such Schedule may be amended from time to time.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares Securities on behalf of the Company, pursuant to this Section 4(a2(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares Securities on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The gross sales price of any Securities sold pursuant to this Agreement by the Sales Agent, as an agent of the Company, shall be the market price prevailing at the time of sale for Securities sold by the Sales Agent on the Nasdaq Global Select Market or otherwise, at prices related to prevailing market prices or, subject to specific instructions of the Company, at negotiated prices. The compensation to the Sales Agent, as an agent of the Company, for sales of the Shares Securities shall be at a mutually agreed rate up to 1.251.5% of the gross sales price of the Shares Securities sold pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and 2(a). The foregoing rate of compensation shall not apply when the Sales Agent from acts as principal, in which case the Company may sell Securities to the Sales Agent as principal at a price agreed upon at the relevant applicable time pursuant to timea separate agreement (each, a “Terms Agreement”) relating to such sale. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares Securities (the “Net Proceeds”). The Sales Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be made.
(v) The Sales Agent shall provide written confirmation to the Company as soon as practicable following the close of trading on the NYSE Nasdaq Global Select Market each day in on which the Shares Securities are sold under this Section 4(a2(a) setting forth the aggregate amount of the Shares Securities sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares Securities pursuant to this Section 4(a2(a) will occur on the first business day Trading Day following the date on which such sales are made or such other made, unless another date as may shall be agreed upon by the Company and the Sales Agent (provided that, if such Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day) (each such date, a “Settlement Date”). As used herein, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares Securities sold through the Sales Agent for settlement on such date shall be issued and delivered by the Company (through its transfer agent) to the Sales Agent against payment of the Net Proceeds for the sale of such SharesSecurities. Settlement for all such Shares Securities shall be effected by free delivery of electronically transferring the Shares Securities by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The the Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties heretoCompany and the Sales Agent, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, Company (or its transfer agent (if applicable), agent) shall default on its obligation to deliver the Shares Securities on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Sales Agent in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares Securities through DWAC for purposes of this Section 4(a)(vi2(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares Securities on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company hereinCompany, the Adviser and the Administrator, to the performance by the Company Company, the Adviser and the Administrator of its their obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 3 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares Securities other than as set forth in Section 4(a2(a) of this Agreement (each, a “Placement”)Agreement, it will may elect, in its sole discretion, to notify the Sales Agent of the proposed terms of such Placementsale. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. For avoidance of doubt, nothing contained in this Agreement shall be construed to require the Company to engage the Sales Agent in connection with the offer and sale of any of its securities, including shares of the Common Stock, whether in connection with an underwritten offering or otherwise.
(ic) In the event the Company engages the Sales Agent for a sale of Securities that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the 1934 Act, or a “distribution,” within the meaning of Rule 100 of Regulation M under the 1934 Act, the Company and the Sales Agent will agree to compensation that is customary for the Sales Agent with respect to such transactions.
(d) Under no circumstances shall the Company cause or request the offer or sale of any Securities if, after giving effect to the sale of such Securities, the aggregate gross sales proceeds or the aggregate number of Shares the Securities sold pursuant to this Agreement would exceed the number of Shares authorized from time to time to be issued amount available for offer and sold sale under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writingcurrently effective Registration Statement.
(iie) If either any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange 1934 Act are not satisfied with respect to the SharesSecurities, it shall promptly notify the other party parties and sales of the Shares Securities under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Sales Agent (which such request may be by electronic mail), the Sales Agent shall promptly calculate and provide in writing to the Company a report setting forth, for the prior week, the average daily trading volume (as defined in Rule 100 of Regulation M under the 1934 Act) of the Common Stock.
(df) Each sale of the Shares Securities to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement. The commitment of the Sales Agent to purchase the Securities pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the parties herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Securities to be purchased by the Sales Agent pursuant thereto, the price to be paid to the Company for such Securities, any provisions relating to rights of, and default by, underwriters acting together with the Sales Agent in the reoffering of the Securities, any provisions relating to the granting of an option to purchase additional Securities for the purpose of covering over-allotments, and the time and date (each such time and date being referred to herein as a “Date of Delivery”) and place of delivery of and payment for such Securities. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 5 hereof and any other information or documents required by the Sales Agent.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(fg) Subject to the such further limitations on offers and sales of Securities or delivery of instructions to offer and sell Securities as are set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, Agent offers and sales of Securities pursuant to this Agreement may shall not be requested by the Company and need not be made by the Sales Agent at any time when or during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the SharesSecurities, (B) the Sales Agent will not incur no liability or obligation to the Company or any other person or entity if it such Sales Agent does not sell Shares Securities for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares Securities in accordance with the terms of this Agreement, Agreement and (C) the Sales Agent shall not be under no any obligation to purchase Shares Securities on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent and the Company. For purposes of clarification, the Sales Agent shall only be deemed to be acting as a sales agent under this Agreement during the period beginning with the delivery of a Placement Notice from the Company to the Sales Agent and ending upon the suspension or termination of such Placement Notice.
(i) The Company agrees that, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Securities or sales of Common Stock pursuant to any At the Market Offering (as defined herein and within the meaning of Rule 415(a)(4) under the 1933 Act) shall only be effected by or through the Sales Agent or any Other Agent. Notwithstanding the foregoing or anything to the contrary in this Agreement, during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Securities or sales of Common Stock that do not constitute an At the Market Offering (as defined herein and within the meaning of Rule 415(a)(4) under the 1933 Act), including any underwritten offering or private placement transaction exempt from the requirements of the 1933 Act, may be effected by the Company by or through any person or entity in the Company’s sole discretion.
Appears in 1 contract
Samples: Equity Distribution Agreement (MidCap Financial Investment Corp)
Sale and Delivery of Securities. (a) On The Company agrees to issue and sell the Securities to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein contained, but and subject to the terms conditions set forth herein, agrees, severally and conditions herein set forthnot jointly, to purchase at a price of $5.64 per Unit (the “Purchase Price”) from the Company agrees to issue and sell through the Sales Agent, as sales agent, and the Sales Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following termsrespective number of Securities set forth opposite such Underwriter’s name in Schedule 1 hereto.
(ib) The Shares are Company understands that the Underwriters intend to be sold on make a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any public offering of the individuals listed as authorized representatives of Securities, and initially to offer the Company Securities on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) terms set forth in the Company has satisfied its obligations under Section 8 of this AgreementGeneral Disclosure Package. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Underwriters may offer and sell Securities to or through any affiliate of an Underwriter.
(c) Payment for the Securities shall have no be made by wire transfer in immediately available funds to the account specified by the Company to the Representative, at the offices of Gxxxxxx Procter LLP, The New York Times Building, 600 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m. New York City time on November 2, 2023, or at such obligationother time or place on the same or such other date, in not later than the event an offer or sale of fifth business day thereafter, as the Shares on behalf of Representative and the Company may agree upon in writing. The time and date of such payment for the judgment Securities is referred to herein as the “Closing Date”. Payment for the Securities to be purchased on the Closing Date shall be made against delivery to the Representative for the respective accounts of the Sales Agent constitute several Underwriters of the Securities to be purchased on such date with any transfer taxes payable in connection with the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than such Securities duly paid by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a), other than (A) by means of At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales Agent.
(iv) The compensation to the Sales Agent, as an agent of the Company, for sales Delivery of the Shares shall be up to 1.25% made through the facilities of The Depository Trust Company unless the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount as Representative shall otherwise mutually agreed upon by the Company and the Sales Agent from time to timeinstruct. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a) will occur on the first business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent for settlement on such date Warrants shall be issued and delivered by the Company in physical certificated form at the direction of the Representative, issued in such names and in such denominations as the Representative may direct by notice in writing to the Sales Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales Agent’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q)), the Company shall be deemed to have affirmed each of their respective representations and warranties contained in this Agreement. Any obligation of the Sales Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales Agent, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(h) The Company acknowledges and agrees that the Representative and the other Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (Aincluding in connection with determining the terms of the offering) there can be no assurance that and not as a financial advisor or a fiduciary to, or an agent of, the Sales Agent will be successful in selling Company or any other person. Additionally, neither the Shares, (B) the Sales Agent will incur no liability or obligation to Representative nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or entity if it does not sell Shares regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor the other Underwriters shall have any reason other than a failure responsibility or liability to the Company with respect thereto. Any review by the Sales Agent Representative and the other Underwriters of the Company, the transactions contemplated hereby or other matters relating to use its commercially reasonable efforts consistent with its normal trading such transactions will be performed solely for the benefit of the Underwriters and sales practices and applicable law and regulations to sell such Shares in accordance with the terms shall not be on behalf of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell the Securities from time to time through the Sales AgentManager, acting as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares Securities on the following terms.
(i) The Shares Securities are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE New York Stock Exchange (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“NYSE”), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent daily as agreed to by the Sales Agent and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent in writing (a “Placement Notice”). Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Sales Agent shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent shall have no such obligation, in the event an offer or sale Securities hereunder. The gross sales price of the Shares on behalf Securities sold under this Section 2(a) shall be the market price for shares of the Company may in Company’s Common Stock at which such Securities were sold by the judgment of the Sales Agent constitute the sale of a “block” Manager under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”this Section 2(a).
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManager will be successful in selling the Securities, (B) the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (Manager will incur no liability or as otherwise agreed obligation to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or any other person or entity if it does not sell the Sales Agent Securities for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Securities as required under this Agreement, and (C) the Manager shall be under no obligation to purchase the Securities on a principal basis pursuant to this Agreement.
(iii) The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Securities for any reason and at any time; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares Securities sold hereunder prior to the giving of such notice.
(iiiiv) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares Securities on behalf of the Company, pursuant to this Section 4(a2(a), other than (A) by means of At-the-Market Offerings ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus in accordance with Rule 153 or any other transactions that so qualify (all such transactions are hereinafter referred to as “Continuous Offerings”) and (B) such other sales of the Shares Securities on behalf of the Company in its capacity as sales agent of the Company as shall be agreed by the Company and the Sales AgentManager.
(ivv) The compensation to the Sales Agent, as an agent of the Company, Manager shall receive no commission for sales of the Shares shall be up Securities with respect to 1.25% which the Manager acts as sales agent under this Agreement. The proceeds from the sales of the gross sales price of the Shares sold Securities pursuant to this Section 4(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent from time to time. The remaining proceedsAgreement, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares Securities (the “Net Proceeds”).
(vvi) The Sales Agent Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company following the close of trading on the NYSE each day in which the Shares Securities are sold under this Section 4(a2(a) setting forth the amount number of the Shares Securities sold on such day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and any expenses of the Manager reimbursable pursuant hereto by the Company and the compensation with respect to such sales payable by the Company to the Sales Agent Manager with respect to such sales. Such expenses shall be set forth and invoiced in periodic statements from the Manager to the Company, with payment to be made by the Company promptly after its receipt thereof.
(vivii) Settlement for sales of the Shares Securities pursuant to this Section 4(a2(a) will occur at 10:00 a.m. (Eastern Time), or at such other time as the Company and the Manager may agree, on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares Securities sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such SharesSecurities. Settlement for all such Shares Securities shall be effected by free delivery of the Shares by the Company or its transfer agent Securities to the Sales AgentManager’s account, or to the account of the Sales Agent’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian Custodial System (“DWAC”) ), or by such other means of delivery as may be mutually agreed upon by the parties hereto, which Securities shall in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, Company or its transfer agent (if applicable), ) shall default on its obligation to deliver the Shares Securities on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Manager breaches this Agreement by failing to deliver the Net Proceeds on any Settlement Date for the Securities delivered by the Company, the Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi)Manager.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Date, Representation Date (as defined in Section 5(q3(m)) and Filing Date (as defined in Section 3(z)), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares Securities on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent of the proposed terms of such Placement. If the Sales Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ib) Under no circumstances shall the aggregate number of Shares the Securities sold pursuant to this Agreement exceed the number of Shares the Securities authorized from time to time to be issued and sold under this Agreement by the Company’s board of directorsBoard, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing.
(iic) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the SharesSecurities, it shall promptly notify the other party and sales of the Shares Securities under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale The Company agrees that, on any single given day, any offer to sell, any solicitation of an offer to buy, or any sales of Securities, in each case by or on behalf of the Shares to Company, shall only be effected by or through the Sales Agent Manager; provided, however, that the foregoing limitation shall be not apply on any day during which no sales are made in accordance with the terms of pursuant to this Agreement or, if applicable, a Terms Agreementand no Settlement Date is pending with respect to Securities previously sold hereunder.
(e) Any offerNotwithstanding any other provision of this Agreement, solicitation or the Company shall not request the sale of the Shares shall any Securities that would be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company sold, and the Sales Agent, sales pursuant to this Agreement may Manager shall not be requested by the Company and need not be made by the Sales Agent obligated to sell, during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists at the Execution Time, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, or during any other period in which the Company is is, or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision ; provided that, unless otherwise agreed between the Company and the Manager, for purposes of this Agreement, paragraph (e) such period shall be deemed to last from the first day of the month after a calendar quarter until 24 hours after the filing of the earnings release relating to such quarter. The Company shall not offer, sell or deliver, or request agrees to provide the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (Manager with a copy of its xxxxxxx xxxxxxx policy as it exists at the Execution Time, and to counsel for advise the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included Manager in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery writing of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve changes thereto after the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent applicationExecution Time.
(h) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent will be successful in selling the Shares, (B) the Sales Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent and the Company.
Appears in 1 contract
Samples: Continuous Offering Program Equity Distribution Agreement (Citigroup Inc)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day (a “Trading Day”) for the NYSE New York Stock Exchange (the “NYSE”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B II hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount number of the Shares to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount of Shares available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number amount of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated on any day; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may would in the reasonable judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such ordinary brokers’ transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to sales shall not be effected by the Company and the Sales Agent) not to sell the Shares Manager if such sales they cannot be effected at or above the price designated by the Company in any such applicable sales instruction. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.252.0% of the gross sales price of the Shares sold pursuant to this Section 4(a) or such lower amount 3(a), as otherwise mutually agreed upon by the Company and the Sales Agent from time to timeset forth on Schedule III. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the aggregate amount of the Shares sold on such day, the aggregate Net Proceeds to the Company Company, and the aggregate compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first business day third Trading Day following the date on which such sales are made or (provided that, if such other third trading day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date as may shall be agreed upon by the Company and the Sales Agent Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 7 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formeligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q6(c)), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(ib) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement would exceed the number lesser of Shares (A) the amount set forth in Section 1 of this Agreement, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon written request, the Manager shall assist the Company in calculating the average daily trading volume (as defined by Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale Without the prior written consent of the Shares shall be effected by or through only one each of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales AgentManager, no sales pursuant to this Agreement may of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be requested by the Company and need not be made by the Sales Agent obligated to sell, during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of the Agreement and provided to the Manager, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, or during any other period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision ; provided that, unless otherwise agreed between the Company and the Manager, for purposes of this Agreementsubsection (e), such period shall be deemed to end on the Company shall not offer, sell or deliver, or request date on which the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Company’s next subsequent Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periodsQuarterly Report on Form 10-Q, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K is filed with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager will be successful in selling the Shares, (B) the Sales Agent Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed in writing by the Sales Agent Manager and the Company. The foregoing does not affect the Manager’s obligations under Section 7(b) or any of the Manager’s other obligations arising pursuant to this Agreement or any rights the Company may have with respect to a breach of those obligations.
Appears in 1 contract
Samples: Equity Distribution Agreement (Aecom Technology Corp)
Sale and Delivery of Securities. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales AgentManager, as sales agent, and the Sales Agent Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Sales Agent Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) from any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”) to make such sales and (C) the Company has satisfied its obligations under Section 8 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Sales Agent Manager daily as agreed to by the Sales Agent Manager and in any event not in excess of the amount available for issuance under the currently effective Registration Statement relating to the sale of up to $1,500,000,000 of Shares as described in the prospectus supplement dated September 20, 2024, or any Registration Statement filed pursuant to Section 5(g), or in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing (a “Placement Notice”)writing. Subject to the terms and conditions hereof, the Sales Agent Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; designated; provided, however, that the Sales Agent Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Sales Agent Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the Sales Agent Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Sales Agent Manager reasonably believes it may be deemed an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Sales Agent Manager by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Sales Agent Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail) (or as otherwise agreed to by the Company and the Sales Agent), suspend the offering of the Shares; Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(iii) The Sales Agent Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 4(a3(a), other than (A) by means of At-the-At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Sales AgentManager.
(iv) The compensation to the Sales AgentManager, as an agent of the Company, for sales of the Shares shall be up to 1.251.5% of the gross sales price of the Shares sold pursuant to this Section 4(a3(a) or such lower amount as otherwise mutually agreed upon by the Company and the Sales Agent Manager from time to time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(v) The Sales Agent Manager shall provide written confirmation to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 4(a3(a) setting forth the amount of the Shares sold on such day, the Net Proceeds to the Company Company, and the compensation payable by the Company to the Sales Agent Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 4(a3(a) will occur on the first third business day following the date on which such sales are made or such other date as may be agreed by the Company and the Sales Agent (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Sales Agent Manager for settlement on such date shall be issued and delivered by the Company to the Sales Agent Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Sales AgentManager’s account, or to the account of the Sales AgentManager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Sales Agent Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Sales Agent Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi3(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (as defined in Section 5(q4(q)), the Company shall be deemed to have affirmed each of their respective representations representation and warranties warranty contained in this Agreement. Any obligation of the Sales Agent Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 8 6 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a3(a) of this Agreement (each, a “Placement”), it will notify the Sales Agent Manager of the proposed terms of such Placement. If the Sales AgentManager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Sales Agent Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement exceed the number of Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Sales Agent Manager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares to or through the Sales Agent Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Any offer, solicitation or sale of the Shares shall be effected by or through only one of the Agents on any single trading day.
(f) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Sales AgentManager, sales pursuant to this Agreement may not be requested by the Company and need not be made by the Sales Agent Manager except (i) during the period that begins on the second business day after the filing of a quarterly report on Form 10-Q or an annual report on Form 10-K as of and within the period required by the Exchange Act and ends on the fourth business day prior to declaration of the Company’s regular quarterly dividend on shares of its Common Stock for the next succeeding fiscal quarter, inclusive, or (ii) during the period that begins on the second business day after declaration of the Company’s regular quarterly dividend on shares of its Common Stock and ends on the eleventh business day prior to the Company’s earnings release for its next succeeding fiscal quarter, inclusive; provided that no such period for sales begin until the Manager is in receipt of all required deliverables as specified in Sections 4(q), 4(r), 4(s), 4(t), 4(u) and 6(e) and has satisfactorily completed its diligence pursuant to Section 4(v). Notwithstanding the foregoing, without the prior written consent of each of the Company and the Manager, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement at any time during the period from and including the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the Representation Date that occurs in connection with the Company filing a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement, unless the Company shall first (i) prepare and deliver to the Sales Agent (with a copy to counsel for the Sales Agent) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Sales Agent, and, prior to its filing, obtain the written consent of the Sales Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide the Sales Agent with the officers’ certificates, opinions and letters of counsels and accountants’ letter specified in Sections 5(q) through 5(u), inclusive, hereof, (iii) afford the Sales Agent the opportunity to conduct a due diligence review in accordance with Section 5(v) hereof prior to filing such Earnings 8-K and (iv) file (rather than furnish) such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions or letters of counsel or accountants’ letter pursuant to this Section 4(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 5(q) through 5(u), inclusive, hereof, and (B) this Section 4(g) shall in no way affect or limit the operation of Section 4(d) hereof, which shall have independent application.
(hf) The Company acknowledges and agrees that (A) there can be no assurance that the Sales Agent Manager will be successful in selling the Shares, (B) the Sales Agent Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Sales Agent Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (C) the Sales Agent Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Sales Agent Manager and the Company.
(g) It shall be a condition to any sale of shares by the Manager hereunder that the Manager has requisite regulatory approvals (including FINRA approvals) to make such sales.
Appears in 1 contract
Samples: Distribution Agency Agreement (Annaly Capital Management Inc)
