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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Stock during the term of this Agreement on the terms set forth herein. The Stock will be sold from time to time in amounts and at prices as directed by the Company and as agreed to by the Sales Manager. (b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Stock sold hereunder prior to the giving of such notice. (c) The compensation to the Sales Manager for sales of Stock shall be at the following commission rates for the shares of Stock sold under this Agreement: 3.0% of the gross sales price per share (“sales proceeds”) for the first $8 million of aggregate sales proceeds raised in each year (commencing with the date hereof); 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes of this section 2.1(c), the first year shall end on December 31, 2004, and each subsequent year shall end on the next succeeding December 31st. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock (the “Net Proceeds”). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise. (d) 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 Net Proceeds from the sale of the Stock shall be available in the Trading Account on the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock (each, a “Settlement Date”). The Company shall effect the delivery of the applicable number of shares of Common Stock and/or Preferred Stock (as the case may be) 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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreement. (f) If the Company shall default on its obligation to deliver Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
Appears in 2 contracts
Samples: Sales Agreement (Capstead Mortgage Corp), Sales Agreement (Capstead Mortgage 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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Stock Shares during the term of this Agreement on the terms set forth herein. The Stock Shares will be sold from time to time as described in amounts the Registration Statement and at prices Prospectus, in amounts, and subject to price limitations, as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of StockShares; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Stock Shares sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock Shares shall be at the following a fixed commission rates for the shares rate of Stock sold under this Agreement: 3.03% of the gross sales price per share (“sales proceeds”) for the first $8 million of aggregate sales proceeds raised in each year (commencing with the date hereof); 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes of Shares sold under this section 2.1(c), the first year shall end on December 31, 2004, and each subsequent year shall end on the next succeeding December 31stAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock Shares (the “Net Proceeds”). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the Company shall, with respect to each sale of Shares, effect delivery of the Stock shall be available in applicable number of Shares to the Trading Account Account, on or before the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock Shares (each, a “Settlement Date”). The Company shall effect Net Proceeds from the delivery sale of the applicable number Shares shall be available in the Trading Account following the settlement of shares of Common Stock and/or Preferred Stock (as the case may be) to an account designated by the Sales Manager at The Depository Trust Company sale on or before the Settlement Date of each sale hereunderDate. 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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreementbelow.
(f) If the Company shall default on its obligation to deliver Stock Shares on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
Appears in 1 contract
Samples: Sales Agreement (Brandywine Operating Partnership Lp /Pa)
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount shares of the Stock during the term of this Agreement on the terms set forth herein. The Stock will be sold from time to time time, pursuant to the Registration Statement and Prospectus and/or in amounts and any other manner permitted by law (including, without limitation, privately negotiated transactions) at prices prevailing at the time of sale and in such amounts as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopyfacsimile), at any time and from time to time suspend the offering of shares of the Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of shares of the Stock shall be at the following a fixed commission rates for the shares rate of Stock sold under this Agreement: 3.0% four and one-half percent (4.5%) of the gross sales price per share (“sales proceeds”) for the Stock sold under this Agreement, up to the first Seven Million Dollars ($8 million 7,000,000) of aggregate sales proceeds raised in each year (commencing with the date hereof); 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes of this section 2.1(c), the first year shall end on December 31, 2004gross offering proceeds, and each subsequent year shall end on thereafter at a rate of three and one-half percent (3.5%) of the next succeeding December 31stgross sales price per share for all other sales of shares of the Stock sold under this Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock (the “Net Proceeds”). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the Company shall, with respect to each sale of shares of the Stock, effect delivery of the applicable number of shares of Stock shall be available in to the Trading Account Account, on or before the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock (each, a “Settlement Date”). The Company shall effect Net Proceeds from the delivery sale of the applicable number Stock shall be available in the Trading Account following the settlement of shares of Common Stock and/or Preferred Stock (as the case may be) to an account designated by the Sales Manager at The Depository Trust Company sale on or before the Settlement Date of each sale hereunderDate. 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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreementbelow.
(f) If the Company shall default on its obligation to deliver Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Stock during the term of this Agreement on the terms set forth herein. The Stock will be sold from time to time as described in amounts the Registration Statement and at prices Prospectus, in amounts, and subject to price limitations, as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopyfacsimile), at any time and from time to time suspend the offering of Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock shall be at the following a commission rates for the shares rate of Stock sold under this Agreement: 3.04.5% of the gross sales price per share (“sales proceeds”) for the first Stock sold under this Agreement up to aggregate gross proceeds of $8 7 million under this Agreement, and thereafter at a commission rate of aggregate sales proceeds raised in each year (commencing with the date hereof); 2.53.5% of the gross sales proceeds price per share for the next $4 million of aggregate sales proceeds raised in such year and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes of Stock sold under this section 2.1(c), the first year shall end on December 31, 2004, and each subsequent year shall end on the next succeeding December 31stAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock (the “Net Proceeds”). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the Company shall, with respect to each sale of Stock, effect delivery of the applicable number of Stock shall be available in to the Trading Account Account, on or before the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock (each, a “Settlement Date”). The Company shall effect Net Proceeds from the delivery sale of the applicable number Stock shall be available in the Trading Account following the settlement of shares of Common Stock and/or Preferred Stock (as the case may be) to an account designated by the Sales Manager at The Depository Trust Company sale on or before the Settlement Date of each sale hereunderDate. 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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreementbelow.
(f) If the Company shall default on its obligation to deliver Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basisbasis at prevailing market prices, up to the Maximum Amount shares of the Stock Company Equity Securities during the term of this Agreement on the terms set forth herein. The Stock Company Equity Securities will be sold from time to time as described in the Registration Statement and Prospectus, in amounts and at prices and, subject to price limitations, as directed by the Company and as agreed to by the 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.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopytelecopy or e-mail), at any time and from time to time suspend the offering of StockCompany Equity Securities; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Stock Company Equity Securities sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock Company Equity Securities sold under this Agreement shall be at the following commission rates for the shares of Stock sold under this Agreementrates: 3.0% of the gross sales price per share (“sales proceeds”) for the first $8 million of aggregate sales proceeds raised in each year (commencing with the date hereof)Sales Period; 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year each Sales Period and 2.0% of sales proceeds for the next $88 million of aggregate sales proceeds raised in each Sales Period; and 1.0% of sales proceeds for any additional aggregate sales proceeds raised in each Sales Period, or in the alternative, such yearother percentages of the sales proceeds as the Sales Manager and the Company shall mutually agree to. For purposes of this section 2.1(c), the first year initial “Sales Period” shall have commenced on March 10, 2008 and shall end on December 31, 2004, 2015 and each subsequent Sales Period shall be for a two year shall end period, commencing on January 1 and ending on December 31 of the next succeeding December 31stfollowing calendar year. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock 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 Stock Company Equity Securities by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) The Company shall open and maintain a trading account or accounts (the “Trading AccountAccounts”) at a clearing agent designated by the Sales Manager to facilitate the transactions contemplated by this Agreement. The Net Proceeds from the sale of the Stock any Company Equity Securities shall be available in the Trading Account Accounts on the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock any Company Equity Securities (each, a “Settlement Date”). The Company shall effect the delivery of the applicable number of shares of Common Stock and/or Preferred Stock (as the case may be) Company Equity Securities to an account or accounts 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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreement.
(f) If the Company shall default on its obligation to deliver Stock Company Equity Securities on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basisbasis at prevailing market prices, up to the Maximum Amount shares of the Stock Company Equity Securities during the term of this Agreement on the terms set forth herein. The Stock Company Equity Securities will be sold from time to time as described in the Registration Statement and Prospectus, in amounts and at prices and, subject to price limitations, as directed by the Company and as agreed to by the 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.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopytelecopy or e-mail), at any time and from time to time suspend the offering of StockCompany Equity Securities; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Stock Company Equity Securities sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock Company Equity Securities sold under this Agreement shall be at the following commission rates for the shares of Stock sold under this Agreementrates: 3.0% of the gross sales price per share (“sales proceeds”) for the first $8 million of aggregate sales proceeds raised in each year (commencing with the date hereof)Sales Period; 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year each Sales Period and 2.0% of sales proceeds for the next $88 million of aggregate sales proceeds raised in each Sales Period; and 1.0% of sales proceeds for any additional aggregate sales proceeds raised in each Sales Period, or in the alternative, such yearother percentages of the sales proceeds as the Sales Manager and the Company shall mutually agree to. For purposes of this section 2.1(c), the first year initial “Sales Period” shall have commenced on March 10, 2008 and shall end on December 31, 2004, 2014 and each subsequent Sales Period shall be for a two year shall end period, commencing on January 1 and ending on December 31 of the next succeeding December 31stfollowing calendar year. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock 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 Stock Company Equity Securities by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) The Company shall open and maintain a trading account or accounts (the “Trading AccountAccounts”) at a clearing agent designated by the Sales Manager to facilitate the transactions contemplated by this Agreement. The Net Proceeds from the sale of the Stock any Company Equity Securities shall be available in the Trading Account Accounts on the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock any Company Equity Securities (each, a “Settlement Date”). The Company shall effect the delivery of the applicable number of shares of Common Stock and/or Preferred Stock (as the case may be) Company Equity Securities to an account or accounts 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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreement.
(f) If the Company shall default on its obligation to deliver Stock Company Equity Securities on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Stock during the term of this Agreement on the terms set forth herein. The Stock will be sold from time to time in amounts and at prices as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock shall be at the following a fixed commission rates for the shares rate of Stock sold under this Agreement: 3.0% of the gross sales price per share (“sales proceeds”) for the first $8 million of aggregate sales proceeds raised in each year (commencing with the date hereof); 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes of Stock sold under this section 2.1(c), the first year shall end on December 31, 2004, and each subsequent year shall end on the next succeeding December 31stAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock (the “Net Proceeds”). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the sale of the Stock shall be available in the Trading Account on the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock (each, a “Settlement Date”). The Company shall effect the delivery of the applicable number of shares of Common Stock and/or Preferred Stock (as the case may be) 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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreementbelow.
(f) If the Company shall default on its obligation to deliver Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best reasonable efforts basis, up to the Maximum Amount maximum amount of the Stock Shares during the term of this Agreement on the terms set forth herein. The Stock Shares will be sold from time to time as described in amounts the Registration Statement and at prices Prospectus, in amounts, and subject to price limitations, as directed by the Company and as agreed to by the Sales ManagerCompany.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of StockShares; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Stock Shares sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock Shares shall be at the following a fixed commission rates for the shares rate of Stock sold under this Agreement: 3.03% of the gross sales price per share (“sales proceeds”) for the Shares sold under this Agreement with respect to and including the first $8 17.5 million of aggregate gross sales proceeds raised in each year (commencing with resulting from Shares sold pursuant to this Section 3 and any shares of common stock of the date hereof); Company sold through the Manager as agent under another agreement between the Manager and the Company and 2.5% of the gross sales proceeds price per share for each additional Share sold pursuant to this Section 3 and for each additional share of common stock of the next $4 million of aggregate sales proceeds raised in such year Company sold through the Manager as agent under another agreement between the Manager and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes of this section 2.1(c), the first year shall end on December 31, 2004, and each subsequent year shall end on the next succeeding December 31stCompany. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to of such sale shall constitute the net proceeds to the Company for such Stock Shares (the “Net Proceeds”). For purposes The Company and the Manager agree that in the event the Company agrees to compensate an agent of the first sentence of this section 2.1(c), Company for sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company’s capital stock at a rate in excess of the rates set forth herein, whether under this Agreementthe Company shall promptly notify the Manager and effective as of the date of any such agreement, or otherwisethe 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.
(d) The Manager acknowledges and agrees that the Company may enter into an agreement providing for the offering on an agency basis of the Company’s Preferred Stock and/or common 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 Preferred Stock to offer or sell shares of the Company’s Preferred Stock .
(e) The Manager or its clearing agent shall provide a written report, which may be by e-mail, to the Company following the close of trading on the NYSE on each day during which Shares are sold under this Section 3 setting forth the number of Shares sold on such day, the Net Proceeds to the Company, and the compensation payable by the Company to the Manager with respect to such sales.
(f) 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 Net Proceeds from the Company shall, with respect to each sale of Shares, effect delivery of the Stock shall be available in applicable number of Shares to the Trading Account Account, on or before the third business day (or such other day as is industry practice for regular-way tradingtrading and with prior notice from the Manager) following each sale of the Stock (each, a “Settlement Date”). The Company shall effect Net Proceeds from the delivery sale of the applicable number Stock shall be available in the Trading Account following the settlement of shares of Common Stock and/or Preferred Stock (as the case may be) to an account designated by the Sales Manager at The Depository Trust Company sale on or before the Settlement Date of each sale hereunderDate. The Sales Manager’s compensation shall be withheld from the sales proceeds on each Settlement Date and shall be paid to the Sales Manager.
(eg) At each Settlement DateDate and Filing Date (as defined below), 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 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 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 Article IV of this AgreementSection 5 below.
(fh) If the Company shall default on its obligation to deliver Stock Shares on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
Appears in 1 contract
Samples: Preferred 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 through the Sales Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Stock during the term of this Agreement on the terms set forth herein. The Stock will be sold from time to time in amounts and at prices as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ ' respective obligations with respect to the shares of Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock shall be at the following a fixed commission rates for the shares rate of Stock sold under this Agreement: 3.03.25% of the gross sales price per share (“sales proceeds”) for the first $8 million of aggregate sales proceeds raised in each year (commencing with the date hereof); 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes of Stock sold under this section 2.1(c), the first year shall end on December 31, 2004, and each subsequent year shall end on the next succeeding December 31stAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock (the “"Net Proceeds”"). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the sale of the Stock shall be available in the Trading Account on the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock (each, a “"Settlement Date”"). The Company shall effect the delivery of the applicable number of shares of Common Stock and/or Preferred Stock (as the case may be) 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 's compensation shall be withheld from the sales proceeds on each Settlement Date and shall be paid to the Sales Manager. If settlement through DTC is not available, then the Company shall effect the delivery of physical certificates for shares of Stock to the Trading Account at the clearing agent designated by the Sales Manager. Such delivery shall be made at 10:00 a.m., New York time, on the Settlement Date, or at such other time as shall be agreed upon by the Sales Manager and the Company. Certificates for the shares shall be registered in such name or names and in such authorized denominations as the Sales Manager may request prior to the Settlement Date.
(e) At each Settlement Date, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV 4 of this Agreement.
(f) If the Company shall default on its obligation to deliver Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Stock during the term of this Agreement on the terms set forth herein. The Stock will be sold from time to time as described in amounts the Registration Statement and at prices Prospectus, in amounts, and subject to price limitations, as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ ' respective obligations with respect to the Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock shall be at the following a fixed commission rates for the shares rate of Stock sold under this Agreement: 3.03% of the gross sales price per share (“sales proceeds”) for the first $8 million of aggregate sales proceeds raised in each year (commencing with the date hereof); 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes of Stock sold under this section 2.1(c), the first year shall end on December 31, 2004, and each subsequent year shall end on the next succeeding December 31stAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock (the “"Net Proceeds”"). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the Company shall, with respect to each sale of Stock, effect delivery of the applicable number of Stock shall be available in to the Trading Account Account, on or before the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock (each, a “"Settlement Date”"). The Company shall effect Net Proceeds from the delivery sale of the applicable number Stock shall be available in the Trading Account following the settlement of shares of Common Stock and/or Preferred Stock (as the case may be) to an account designated by the Sales Manager at The Depository Trust Company sale on or before the Settlement Date of each sale hereunderDate. The Sales Manager’s '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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreementbelow.
(f) If the Company shall default on its obligation to deliver Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Stock during the term of this Agreement on the terms set forth herein. The Stock will be sold from time to time as described in amounts the Registration Statement and at prices Prospectus, in amounts, and subject to price limitations, as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ ' respective obligations with respect to the Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock shall be at the following a fixed commission rates for the shares rate of Stock sold under this Agreement: 3.05% of the gross sales price per share (“sales proceeds”) for the first $8 million of aggregate sales proceeds raised in each year (commencing with the date hereof); 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes of Stock sold under this section 2.1(c), the first year shall end on December 31, 2004, and each subsequent year shall end on the next succeeding December 31stAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock (the “"Net Proceeds”"). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the Company shall, with respect to each sale of Stock, effect delivery of the applicable number of Stock shall be available in to the Trading Account Account, on or before the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock (each, a “"Settlement Date”"). The Company shall effect Net Proceeds from the delivery sale of the applicable number Stock shall be available in the Trading Account following the settlement of shares of Common Stock and/or Preferred Stock (as the case may be) to an account designated by the Sales Manager at The Depository Trust Company sale on or before the Settlement Date of each sale hereunderDate. The Sales Manager’s '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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreementbelow.
(f) If the Company shall default on its obligation to deliver Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount 1,600,000 shares of the Common Stock during the term of this Agreement on the terms set forth herein. The Common Stock will be sold from time to time in amounts and at prices as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of Common Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Common Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Common Stock shall be at the following a fixed commission rates for the shares rate of Stock sold under this Agreement: 3.03% of the gross sales price per share (“sales proceeds”) for of Common Stock sold under this Agreement. If, however, during the first $8 million of period between the date hereof and December 31, 2009, the aggregate sales proceeds raised in each year (commencing with exceed $10 million then the date hereof); 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year and 2.0% of sales proceeds commission rate for any additional aggregate sales proceeds raised in such year. For purposes of this section 2.1(c), the first year shall end on made after December 31, 20042009, and each subsequent year shall end on the next succeeding December 31stwill be 2.5%. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Common Stock (the “Net Proceeds”). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the sale of the Common Stock shall be available in the Trading Account on the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Common Stock (each, a “Settlement Date”). The Company shall effect the delivery of the applicable number of shares of Common Stock and/or Preferred Stock (as the case may be) 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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreement.
(f) If the Company shall default on its obligation to deliver shares of Common Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Share Amount of the Common Stock during the term of this Agreement on the terms set forth herein. The Common Stock will be sold from time to time in amounts and at prices as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of Common Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ ' respective obligations with respect to the Common Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Common Stock shall be at the following a fixed commission rates for the shares rate of Stock sold under this Agreement: 3.03% of the gross sales price per share (“sales proceeds”) for the first $8 million of aggregate sales proceeds raised in each year (commencing with the date hereof); 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes of Common Stock sold under this section 2.1(c), the first year shall end on December 31, 2004, and each subsequent year shall end on the next succeeding December 31stAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Common Stock (the “"Net Proceeds”"). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the sale of the Common Stock shall be available in the Trading Account on the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Common Stock (each, a “"Settlement Date”"). The Company shall effect the delivery of the applicable number of shares of Common Stock and/or Preferred Stock (as the case may be) 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 '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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreement.
(f) If the Company shall default on its obligation to deliver shares of Common Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Stock during the term of this Agreement on the terms set forth herein. The Stock will be sold from time to time in amounts and at prices as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ ' respective obligations with respect to the Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock shall be at the following commission rates for the shares of Stock sold under this Agreement: 3.03.5% of the gross sales price per share (“"sales proceeds”") for the first $8 4 million of aggregate sales proceeds raised under this Agreement in each year (commencing with the date hereof); 2.53.0% of sales proceeds for the next second $4 million of aggregate sales proceeds raised in such year year; 2.5% of sales proceeds for the third $4 million of aggregate sales proceeds raised in such year; and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes of this section 2.1(c), the first year shall begin on August 20, 2001 and end on December August 31, 20042002, and each subsequent year shall end on the next succeeding December August 31st. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock (the “"Net Proceeds”"). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the sale of the Stock shall be available in the Trading Account on the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock (each, a “"Settlement Date”"). The Company shall effect the delivery of the applicable number of shares of Common Stock and/or Preferred Stock (as the 7 9 case may be) 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 '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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreement.
(f) If the Company shall default on its obligation to deliver Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Stock during the term of this Agreement on the terms set forth herein. The Stock will be sold from time to time as described in amounts the Registration Statement and at prices Prospectus, in amounts, and subject to price limitations, as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ ' respective obligations with respect to the Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock shall be at the following commission rates for the shares of Stock sold under this Agreement: 3.0% of the gross sales price per share (“"sales proceeds”") for the first $8 10 million of aggregate sales proceeds raised in each year (commencing with the date hereof), including any sales proceeds raised through the Recoupment Time specified in Section 3.1(h); 2.5% of sales proceeds for the next $4 10 million of aggregate sales proceeds raised in such year and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes of this section 2.1(c), the first year shall end on December August 31, 20042005, and each subsequent year shall end on the next succeeding December August 31st. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock (the “"Net Proceeds”"). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the Company shall, with respect to each sale of Stock, effect delivery of the applicable number of shares of Stock shall be available in to the Trading Account Account, on or before the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock (each, a “"Settlement Date”"). The Company shall effect the delivery Net Proceeds from each sale of the applicable number Stock shall be available in the Trading Account immediately following the settlement of shares of Common Stock and/or Preferred Stock (as such sale on the case may be) to an account designated by the Sales Manager at The Depository Trust Company on or before the related Settlement Date of each sale hereunderDate. The Sales Manager’s '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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreementbelow.
(f) If the Company shall default on its obligation to deliver Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Stock during the term of this Agreement on the terms set forth herein. The Stock will be sold from time to time as described in amounts the Registration Statement or Prospectus, in amounts, and at prices subject to price limitations, as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock shall be at the following commission rates rate, for the shares of Stock sold under this Agreement: 3.0, of 2.5% of the gross sales price per share (“sales proceeds”) for the first $8 million of aggregate sales proceeds raised in each year (commencing with the date hereof); 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes of this section 2.1(c), the first year shall end on December 31, 2004, and each subsequent year shall end on the next succeeding December 31st. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock (the “Net Proceeds”). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from Sales Manager shall provide the Company with daily notice of sales of Stock. The Company shall, with respect to each sale of Stock, effect delivery of the applicable number of shares of Stock shall be available in to the Trading Account Account, on or before the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock (each, a “Settlement Date”). The Company shall effect Net Proceeds from the delivery sale of the applicable number Stock shall be available in the Trading Account following the settlement of shares of Common Stock and/or Preferred Stock (as the case may be) to an account designated by the Sales Manager at The Depository Trust Company sale on or before the Settlement Date of each sale hereunderDate. 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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreementbelow.
(f) If the Company shall default on its obligation to deliver Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Stock during the term of this Agreement on the terms set forth herein. The Stock will be sold from time to time in amounts and at prices as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ ' respective obligations with respect to the Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock shall be at the following a fixed commission rates for the shares rate of Stock sold under this Agreement: 3.02.375% of the gross sales price per share (“sales proceeds”) for the first $8 one million shares of aggregate sales proceeds raised in each year (commencing with the date hereof); 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year Stock sold under this Agreement and 2.0% of the gross sales proceeds price per share for any additional aggregate sales proceeds raised in such year. For purposes the remaining eight hundred thousand shares of Stock sold under this section 2.1(c), the first year shall end on December 31, 2004, and each subsequent year shall end on the next succeeding December 31stAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock (the “"Net Proceeds”"). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the sale of the Stock shall be available in the Trading Account on the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock (each, a “"Settlement Date”"). The Company shall effect the delivery of the applicable number of shares of Common Stock and/or Preferred Stock (as the case may be) 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 '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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreement.
(f) If the Company shall default on its obligation to deliver Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
Appears in 1 contract
Samples: Sales Agreement (Duke Realty 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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Stock during the term of this Agreement on the terms set forth herein. The Stock will be sold from time to time as described in amounts the Registration Statement and at prices Prospectus, in amounts, and subject to price limitations, as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopyfacsimile), at any time and from time to time suspend the offering of Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock shall be at the following a fixed commission rates for the shares rate of Stock sold under this Agreement: 3.04.5% of the gross sales price per share (“sales proceeds”) for the first $8 million of aggregate sales proceeds raised in each year (commencing with the date hereof); 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes of Stock sold under this section 2.1(c), the first year shall end on December 31, 2004, and each subsequent year shall end on the next succeeding December 31stAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock (the “Net Proceeds”). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the Company shall, with respect to each sale of Stock, effect delivery of the applicable number of shares of Stock shall be available in to the Trading Account Account, on or before the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock (each, a “Settlement Date”). The Company shall effect Net Proceeds from the delivery sale of the applicable number Stock shall be available in the Trading Account following the settlement of shares of Common Stock and/or Preferred Stock (as the case may be) to an account designated by the Sales Manager at The Depository Trust Company sale on or before the Settlement Date of each sale hereunderDate. 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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreementbelow.
(f) If the Company shall default on its obligation to deliver Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
Appears in 1 contract
Samples: Sales Agreement (Nexmed 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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount shares of the Common Stock during the term of this Agreement on the terms set forth herein. The Common Stock will be sold from time to time as described in the Registration Statement and Prospectus, in amounts and and, subject to price limitations, at prices as directed by the Company and as agreed to by the Sales Manager; provided that nothing in this Agreement shall be construed to require the Company to sell any shares of Common Stock through the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopytelecopy or e-mail), at any time and from time to time suspend the offering of Common Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Common Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Common Stock sold under this Agreement shall be at the following commission rates for the shares of Stock sold under this Agreementrates: 3.0% of the gross sales price per share (“sales proceeds”) for the first $8 million of aggregate sales proceeds raised in each year (commencing with the date hereof)Sales Period; 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year each Sales Period and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such yeareach Sales Period. For purposes of this section 2.1(c), the first year initial “Sales Period” shall commence on March 10, 2008 and shall end on December 31, 2004, 2009 and each subsequent Sales Period shall be for a two year shall end period, commencing on January 1 and ending on December 31 of the next succeeding December 31stfollowing calendar year. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Common Stock (the “Net Proceeds”). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Common Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the sale of the Common Stock shall be available in the Trading Account on the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Common Stock (each, a “Settlement Date”). The Company shall effect the delivery of the applicable number of shares of Common Stock and/or Preferred Stock (as the case may be) 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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreement.
(f) If the Company shall default on its obligation to deliver Common Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Stock Shares during the term of this Agreement on the terms set forth herein. The Stock Shares will be sold from time to time as described in amounts the Registration Statement and at prices Prospectus, in amounts, and subject to price limitations, as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of StockShares; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Stock Shares sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock Shares shall be at the following commission rates for the shares of Stock Shares sold under this Agreement: 3.02.5% of the gross sales price per share (“sales proceeds”) for the Shares sold under this Agreement for the first $8 15 million of aggregate sales proceeds raised in each year (commencing with the date hereof); 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year and 2.0% of the sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes of this section 2.1(c), the first year shall end on December 311, 20042005, and each subsequent year shall end on the next succeeding December 31st1st. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock Shares (the “Net Proceeds”). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the Company shall, with respect to each sale of Shares, effect delivery of the Stock shall be available in applicable number of Shares to the Trading Account Account, on or before the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock Shares (each, a “Settlement Date”). The Company shall effect Net Proceeds from the delivery sale of the applicable number Shares shall be available in the Trading Account following the settlement of shares of Common Stock and/or Preferred Stock (as the case may be) to an account designated by the Sales Manager at The Depository Trust Company sale on or before the Settlement Date of each sale hereunderDate. 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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreementbelow.
(f) If the Company shall default on its obligation to deliver Stock Shares on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basisbasis at prevailing market prices, up to the Maximum Amount shares of the Stock Company Equity Securities during the term of this Agreement on the terms set forth herein. The Stock Company Equity Securities will be sold from time to time as described in the Registration Statement and Prospectus, in amounts and at prices and, subject to price limitations, as directed by the Company and as agreed to by the 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.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopytelecopy or e-mail), at any time and from time to time suspend the offering of StockCompany Equity Securities; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Stock Company Equity Securities sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock Company Equity Securities sold under this Agreement shall be at the following commission rates for the shares of Stock sold under this Agreementrates: 3.0% of the gross sales price per share (“sales proceeds”) for the first $8 million of aggregate sales proceeds raised in each year (commencing with the date hereof)Sales Period; 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year each Sales Period and 2.0% of sales proceeds for the next $88 million of aggregate sales proceeds raised in each Sales Period; and 1.0% of sales proceeds for any additional aggregate sales proceeds raised in such yeareach Sales Period. For purposes of this section 2.1(c), the first year initial “Sales Period” shall commence on March 10, 2008 and shall end on December 31, 2004, 2012 and each subsequent Sales Period shall be for a two year shall end period, commencing on January 1 and ending on December 31 of the next succeeding December 31stfollowing calendar year. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock 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 Stock Company Equity Securities by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) The Company shall open and maintain a trading account or accounts (the “Trading AccountAccounts”) at a clearing agent designated by the Sales Manager to facilitate the transactions contemplated by this Agreement. The Net Proceeds from the sale of the Stock any Company Equity Securities shall be available in the Trading Account Accounts on the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock any Company Equity Securities (each, a “Settlement Date”). The Company shall effect the delivery of the applicable number of shares of Common Stock and/or Preferred Stock (as the case may be) Company Equity Securities to an account or accounts 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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreement.
(f) If the Company shall default on its obligation to deliver Stock Company Equity Securities on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Stock during the term of this Agreement on the terms set forth herein. The Stock will be sold from time to time as described in amounts the Registration Statement or Prospectus, in amounts, and at prices subject to price limitations, as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ ' respective obligations with respect to the Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock sold under this Agreement shall be at the following a fixed commission rates for the shares rate of Stock sold under this Agreement: 3.03% of the gross sales price per share (“sales proceeds”) for the first $8 million of aggregate sales proceeds raised in each year (commencing with the date hereof); 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes of this section 2.1(c), the first year shall end on December 31, 2004, and each subsequent year shall end on the next succeeding December 31stshare. The proceeds remaining proceeds, after paying the commission and further deduction for deducting any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale sale, shall constitute the net proceeds to the Company for such sales of Stock (the “"Net Proceeds”"). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from Sales Manager shall provide the Company with notice on the day of any sales of Stock. The Company shall, with respect to each sale of Stock, effect delivery of the applicable number of shares of Stock shall be available in to the Trading Account Account, on or before the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock (each, a “"Settlement Date”"). The Company shall effect Net Proceeds from the delivery sale of the applicable number Stock shall be available in the Trading Account following the settlement of shares of Common Stock and/or Preferred Stock (as the case may be) to an account designated by the Sales Manager at The Depository Trust Company sale on or before the Settlement Date of each sale hereunderDate. The Sales Manager’s '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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreementbelow.
(f) If the Company shall default on its obligation to deliver Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default. Notwithstanding the foregoing, the Company shall not be required to issue and sell shares of Stock.
Appears in 1 contract
Samples: Sales Agreement (Windrose Medical 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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Stock during the term of this Agreement on the terms set forth herein. The Stock will be sold from time to time in amounts and at prices as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock shall be at the following commission rates for the shares of Stock sold under this Agreementrates: 3.02.0% of the gross sales price per share (“sales proceeds”) for the first $8 5 million of aggregate sales proceeds raised in each year (commencing with from the date hereof); 2.5% sale of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year Stock under this Agreement and 2.01.5% of sales proceeds for any additional aggregate sales proceeds raised in such year. For purposes from the sale of Stock under this section 2.1(c), the first year shall end on December 31, 2004, and each subsequent year shall end on the next succeeding December 31stAgreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock (the “Net Proceeds”). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the Company shall, with respect to each sale of Stock, effect delivery of the applicable number of Stock shall be available in to the Trading Account Account, on or before the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock (each, a “Settlement Date”). The Company shall effect Net Proceeds from the delivery sale of the applicable number Stock shall be available in the Trading Account following the settlement of shares of Common Stock and/or Preferred Stock (as the case may be) to an account designated by the Sales Manager at The Depository Trust Company sale on or before the Settlement Date of each sale hereunderDate. 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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreementbelow.
(f) If the Company shall default on its obligation to deliver shares of Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
Appears in 1 contract
Samples: Sales Agreement (CapLease, 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 Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Stock during the term of this Agreement on the terms set forth herein. The Stock will be sold from time to time as described in the Registration Statement and Prospectus, in amounts and and, subject to price limitations, at prices as directed by the Company and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of Stock; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Stock sold hereunder prior to the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock sold under this Agreement shall be at the following commission rates for the shares of Stock sold under this Agreementrates: 3.0% of the gross sales price per share (“sales proceeds”) for the first $8 million of aggregate sales proceeds raised in each year (commencing with the date hereof)Sales Period; 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in such year each Sales Period and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in such yeareach Sales Period. For purposes of this section 2.1(c), the first year initial “Sales Period” shall commence on February 1, 2004 and shall end on December 31, 20042005, and each subsequent Sales Period shall be for a two year shall end period, commencing on January 1 and ending on December 31 of the next succeeding December 31stfollowing calendar year. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Stock (the “Net Proceeds”). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Stock by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) 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 Net Proceeds from the sale of the Stock shall be available in the Trading Account on the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Stock (each, a “Settlement Date”). The Company shall effect the delivery of the applicable number of shares of Common Stock and/or Preferred Stock (as the case may be) 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 Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales 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 Article IV of this Agreement.
(f) If the Company shall default on its obligation to deliver Stock on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default.
Appears in 1 contract