Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. (i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions. (ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period. (iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager. (iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”). (v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales. (vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi). (vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof. (viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 7 contracts
Samples: Equity Distribution Agreement (City Office REIT, Inc.), Equity Distribution Agreement (City Office REIT, Inc.), Equity Distribution Agreement (City Office REIT, Inc.)
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by Each time that the Company wishes to issue and the Manager sell Shares on any day that (A) is a trading day for the NYSE Nasdaq Global Select Market (the “NASDAQ”) (a “Trading Day”) (other than a day Trading Day on which the NYSE NASDAQ is scheduled to close prior to its regular weekday closing time) pursuant to this Agreement (each, a “Placement”), it will instruct the Manager by telephone of the parameters in accordance with which it desires Shares to be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, the minimum price below which sales may not be made and any limitation on the number of Shares that may be sold in any one day (Ba “Placement Notice”). If the Manager wishes to accept such proposed terms included in the Placement Notice (which it may decline to do for any reason in its sole discretion) or, following discussion with the Company, through any wishes to accept amended terms, the Manager will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the individuals listed Placement Notice, on the same business day (as defined below) on which such Placement Notice is delivered to the Manager, issue to the Company a notice by email addressed to all of the authorized representatives of the Company on Schedule B C hereto (the “Authorized Company Representatives”)) confirming all of the parameters of the Placement or setting forth the terms it is willing to accept. Where the terms provided in the Placement Notice are amended as provided for in the immediately preceding sentence, has instructed such terms will not be binding on the Company or the Manager until the Company delivers to the Manager an acceptance by telephone email (confirmed promptly or other method mutually agreed to in writing by electronic mailthe parties) to make sales of all of the terms of such Placement Notice, as amended (the “Acceptance”). The Placement Notice (as amended by the corresponding Acceptance, if applicable) shall be effective upon receipt by any of the Authorized Company Representatives of the email notice from the Manager or upon receipt by the Manager of the Company’s Acceptance, as the case may be, unless and until (i) the entire amount of the Shares and covered by the Placement Notice have been sold, (Cii) in accordance with Section 4(a)(ii) hereof, the Company suspends or terminates the Placement Notice, (iii) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in issues a notice delivered by electronic mail to subsequent Placement Notice with parameters superseding those on the Manager substantially in the form attached hereto as Schedule C (a “earlier dated Placement Notice”, or (iv) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance this Agreement has been terminated under the Prospectus and the Registration Statement or in an amount in excess provisions of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the ManagerSection 10. Subject to the terms and conditions of this Section 3(a)hereof (including, without limitation, the accuracy of the representations and warranties of the Company, the Adviser and the Administrator, the performance by the Company of its covenants and other obligations contained herein and the satisfaction of additional conditions specified in Section 6) the Manager shall use its commercially reasonable efforts, consistent with its normal trading and sales practices and applicable law and regulations, to offer and sell all of the Shares designated in the Placement Notice; provided, however, that the Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation in the event an offer or sale of the Shares on behalf of the Company may sell Shares by any method permitted by law in the judgment of the Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed to be an “at the marketunderwriter” offering as defined in Rule 415 under the 1933 Act in a transaction that is other than (A) by means of ordinary brokers’ transactions between members of the NASDAQ that qualify for delivery of a Prospectus to the NASDAQ in accordance with Rule 153 under the 1933 Act or (B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the transactions described in (A) and (B) are hereinafter referred to as “At the Market OfferingOfferings”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailmail from such party), suspend the offering of the Shares for pursuant to this Agreement or suspend or terminate a specified period (a “Suspension Period”)previously issued Placement Notice; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a4(a), other than (A) by means of At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The gross sales price of any Shares sold pursuant to this Agreement by the Manager acting as sales agent of the Company shall be equal to, in the discretion of the Manager, the market price prevailing at the time of sale for the Shares sold by the Manager on the NASDAQ or otherwise, at prices related to prevailing market prices or at negotiated prices (but in no event shall such gross sales price be less than the minimum price per Share designated by the Company at which such Shares may be sold). The compensation to the Manager, as an agent of the Company, for sales of the Shares shall be at a mutually agreed rate, not up to exceed 2.01.5% of the gross sales price of any the Shares sold pursuant to this Section 3(a4(a). The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant applicable time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees fees, transfer taxes or any similar taxes imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE NASDAQ each day on in which the Shares are sold pursuant to under this Section 3(a4(a) setting forth (i) the number aggregate amount of the Shares sold on such day, (ii) the aggregate Net Proceeds to the Company, and (iii) the aggregate compensation payable by the Company to the Manager with respect to such sales. If requested in the Placement Notice, the Manager shall provide written confirmation to the Company’s transfer agent (at the address set forth in the Placement Notice) of the aggregate amount of the Shares sold on such day, at the time the Company is sent such information.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a4(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the date on which such sales are made (provided that, if such second Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day), unless another date shall be agreed upon by the Company and the Manager (each such date, a “Settlement Date”). As used herein, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of electronically transferring the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties heretoCompany and the Manager, which in all cases shall be freely tradable, transferable, registered shares eligible for delivery through DTC, in good deliverable formreturn for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o5(s) hereof, respectively), the Company Company, the Adviser and the Operating Partnership Administrator shall be deemed to have affirmed each representation their respective representations and warranty warranties contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company Company, the Adviser and the Operating Partnership Administrator herein, to the performance by the Company Company, the Adviser and the Operating Partnership Administrator of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiii) If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement or as set forth in Section 4(a) of any Alternative Equity Distribution Agreement, it may elect, in its sole discretion, to notify the Manager of the proposed terms of such sale. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. For avoidance of doubt, nothing contained in this Agreement shall be construed to require the Company to engage the Manager or any Alternative Managers in connection with the offer and sale of any of the Company’s securities, including shares of its Common Stock, whether in connection with an underwritten offering or otherwise.
(c) In the event the Company engages the Manager for a sale of Shares that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act, the Company and the Manager will agree to compensation and deliverables that are customary for the Manager with respect to such transactions.
(d) (i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement and any Alternative Equity Distribution Agreement would exceed the lesser of (A) the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement (C) the amount authorized from time to time to be issued and sold under this Agreement and any Alternative Equity Distribution Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Manager in writing, and (D) the amount that would require approval of the stockholders of the Company under Nasdaq Rule 5635 (or any successor rule). Under no circumstances shall the Company cause or request the offer or sale of any Shares (i) at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and notified to the Manager in writing and (ii) at a price (net of the Manager’s commission, discount or other compensation for such sales payable by the Company pursuant to this Section 4) lower than the Company’s then current net asset value per share (as calculated pursuant to the 1940 Act), unless the Company has received the requisite approval from the Company’s stockholders and the board of directors or a duly authorized committee thereof as required by the 1940 Act, and notifies the Manager in writing. Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 4(d) on the number and the price of the Shares to be issued and sold under this Agreement shall be the sole responsibility of the Company, and the Manager shall have no obligation in connection with such compliance. The Manager shall have no responsibility for maintaining records with respect to the Shares available for sale under the Registration Statement.
(ii) If any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other parties and sales of the Shares under this Agreement and any Alternative Equity Distribution Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Manager (which such request may be by electronic mail), the Manager shall not sell (1) Series A Preferred Shares at promptly calculate and provide in writing to the Company a price higher than report setting forth, for the Series A Maximum Price. For the purposes hereofprior week, the “Series A Maximum Price” shall mean: average daily trading volume (aas defined in Rule 100 of Regulation M under the Exchange Act) through October 4, 2020, of the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleCommon Stock.
Appears in 7 contracts
Samples: Equity Distribution Agreement (Ares Capital Corp), Equity Distribution Agreement (Ares Capital Corp), Equity Distribution Agreement (Ares Capital Corp)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the ManagerAgent, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) i. The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager Agent by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager Agent daily as previously agreed to in writing or electronic transmission by the Manager Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be less (ii) any amounts already issued and sold under this Agreement or, together with all sales of Shares under pursuant to this Agreement and the Alternative Equity Distribution Agreements, in an amount in excess of ) and the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Agent shall use its commercially reasonable efforts to sell on a particular day, consistent with its normal trading practices, all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the Manager may sell Shares market price for shares of the Company’s Common Stock sold by any method permitted by law deemed to be an “the Agent under this Section 3(a) at the market” offering as defined time of sale of such Shares (but in Rule 415 under no event shall such gross sales price be less than the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the minimum price per Share designated by the Company at which such Shares may be sold).
ii. The Company acknowledges and agrees that (A) there can be no assurance that the Agent will be successful in any such instruction. In additionselling the Shares, (B) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Agent and the Company.
iii. The Company shall not authorize the issuance and sale of, and the Agent shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Agent in writing. The Company or the Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iii) iv. The Manager Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, Company pursuant to this Section 3(a), other than (A) (1) by means of At ordinary brokers’ transactions between members of the Market Offerings NYSE that qualify for delivery of a Prospectus in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “Continuous Offerings”), (2) to or through a market maker, or (3) directly on or through any other national securities exchange or facility thereof, a trading facility of a national securities association, an alternative trading system, an electronic communication network or any similar market venue and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the ManagerAgent pursuant to a Terms Agreement.
(iv) v. The compensation to the Manager, as an agent of the Company, Agent for sales of the Shares with respect to which the Agent acts as sales agent under this Agreement shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) and payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when the Agent acts as principal, in which case the Company may sell Shares to the Agent as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed on the Agent by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager vi. The Agent shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company promptly following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the Agent to the Company, with payment to be made by the Company promptly after its receipt thereof.
(vi) vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE third Business Day following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be issued and delivered by the Company to the Agent against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the ManagerAgent’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)Agent.
(vii) viii. At each Time of SaleApplicable Time, Settlement Date and Date, Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Filing Date (as defined in Section 4(o) hereof, respectively4(a)), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) Notwithstanding anything If the Company wishes to issue and sell the Shares pursuant to this Agreement and the Alternative Equity Distribution Agreements but other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify the Agent of the proposed terms of such Placement. If the Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Agent and the Company will enter into a Terms Agreement, in substantially the form of Annex I hereto, setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Agent unless and until the Company and the Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to the contrary hereinAgent shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager Agent. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Agent. The commitment of the Agent to purchase the Shares pursuant to any Terms Agreement shall not sell be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Agent pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Agent in the reoffering of the Shares, and the time and date (1each such time and date being referred to herein as a “Time of Delivery”) Series A Preferred and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Agent.
(d) Under no circumstances shall the aggregate value of the Shares at sold pursuant to this Agreement, the Alternative Equity Distribution Agreements and any Terms Agreement exceed (i) the Maximum Amount, (ii) the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a price higher than duly authorized committee thereof, and notified to the Series A Maximum Price. For the purposes Agent in writing.
(e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the “Series A Maximum Price” Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall mean: only be effected by or through only one of the Agent or an Alternative Agent on any single given day, but in no event by more than one, and the Company shall in no event request that the Agent and any of the Alternative Agents sell Shares on the same day; provided, however, that (a) through October 4, 2020, the product of foregoing limitation shall not apply to (i) $25.00 plus the exercise of any accrued option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and unpaid dividends per share to(b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement.
(f) If either the Company or the Agent has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, but excludingit shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale of, any Shares and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for the offer or sale of any Shares, and the Agent shall not be obligated to offer or sell any Shares, (i) during any period in which the Company is, or could be deemed to be, in possession of material non-public information, or (ii) except as provided in Section 3(h) below, at any time during the period commencing on the seventh Business Day prior to the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of sale operations (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement.
(h) If the Company wishes to offer, sell or deliver Shares at any time during the period from and including an Announcement Date through and including the time that is 24 hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Agent (with a copy to counsel to the Agent) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections, similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agent, and obtain the consent of the Agent to the filing thereof (such consent not to be unreasonably withheld), (ii) provide the Agent with the officers’ certificate, accountants’ letter and opinions and letters of counsel called for by Sections 4(k), (l), (m) and (n) hereof; respectively, (iii) afford the Agent the opportunity to conduct a due diligence review in accordance with Section 4(o) hereof and (iv) file such Earnings 8-K with the Commission, then the provisions of clause (iii) of Section 3(g) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, accountants’ letter and opinions and letters of counsel pursuant to this Section 3(h) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, accountants’ letters and legal opinions and letters as provided in Section 4 hereof and (B) this Section 3(h) shall in no way affect or limit the operation of the provisions of clauses (i) and (ii) 1.005; and (b) on October 5of Section 3(g), 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salewhich shall have independent application.
Appears in 7 contracts
Samples: Equity Distribution Agreement (Colony Capital, Inc.), Equity Distribution Agreement (Colony Capital, Inc.), Equity Distribution Agreement (Colony Capital, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)NYSE, (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mailmail to the applicable individuals named on Schedule III hereto) to make such sales of Shares and (C) the Company has Transaction Entities have satisfied its their obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Manager shall use its reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Stock sold by the Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on the NYSE at the market” offering as defined time of sale of such Shares (but in Rule 415 under no event shall such gross price be less than the Act (an “At minimum price per Share designated by the Market Offering”Company at which such Shares may be sold), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding Each of the foregoingTransaction Entities acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Transaction Entities or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement.
(iii) The Company shall not authorize the issuance and sale of, and the Manager may not sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors (the “Board”), through any of the Authorized Company Representativesor a duly authorized committee thereof, may instruct and notified to the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionwriting. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailmail to the applicable individuals named on Schedule III hereto), suspend the offering of the Shares for a specified period any reason and at any time (a “Suspension PeriodSuspension”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiiv) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf ordinary brokers’ transactions between members of the Company NYSE that qualify for delivery of a Prospectus to the NYSE in its capacity accordance with Rule 153 (such transactions are hereinafter referred to as agent of the Company as shall be mutually agreed upon by the Company and the Manager“At-the-Market Offerings”).
(ivv) The compensation to the Manager, as an agent of the Company, Manager for sales of the Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) on such day. The remaining proceeds, after further deduction for any documented transaction fees imposed on the Manager by any governmental or self-self regulatory organization in respect of such salessales (the “Transaction Fees”), shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by electronic mailmail to the applicable individuals named on Schedule III hereto) as soon as is reasonably practicable to the Company following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the CompanyTransaction Entities, and (iii) the compensation payable by the Company Transaction Entities to the Manager with respect to such sales.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by in return for a payment equal to the Net Proceeds for the sale of such other means of delivery as may be mutually agreed upon Shares in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company Transaction Entities shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Manager breaches this Agreement by failing to deliver the Net Proceeds on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)effective overnight federal funds rate on such unpaid amount.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Date, Representation Date (each, as defined in Section 2(b4(k)) and Filing Date (as defined in Section 4(aa), Section 3(a)(vi) and Section 4(o) hereof, respectively)if any, the Company and the Operating Partnership Transaction Entities shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership Transaction Entities herein, to the performance by the Company and the Operating Partnership Transaction Entities of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) Under no circumstances shall the number and aggregate gross price of the Shares sold pursuant to this Agreement and the Alternative Equity Distribution Agreements exceed any of (i) the aggregate amount set forth in Section 1, (ii) the number of shares of Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement and the Alternative Equity Distribution Agreements by the Board, or a duly authorized committee thereof, and notified to the Manager in writing.
(c) If any of the parties to this Agreement has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other parties and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Notwithstanding anything to any other provision of this Agreement the contrary hereinCompany shall not request the sale of any Shares that would be sold, and the Manager shall not sell be obligated to sell, (1i) Series A Preferred Shares during the 14 calendar days prior to the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”), (ii) except as provided in Section 3(e) below, at any time from and including an Announcement Date through and including the time that is 24 hours after the time that the Company files (a price higher than “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the Series A Maximum Price. For same period or periods, as the case may be, covered by such Earnings Announcement, or (iii) during any other period in which the Company is, or could be deemed to be, in possession of material non-public information,; provided that, unless otherwise agreed between the Company and the Managers, for purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005above, such period shall be deemed to end 24 hours after the next subsequent Filing Time.
(e) If the Company wishes to offer, sell or deliver Shares at any time during the period from and including an Announcement Date through and including the time that is 24 hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Manager (with a copy to counsel to the Manager) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections, similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Manager, and obtain the consent of the Manager to the filing thereof (such consent not to be unreasonably withheld), (ii) provide the Manager with the officers’ certificate, accountants’ letter and opinions and letters of counsel called for by Sections 4(k), 4(l), 4(m), 4(n), 4(o) and 4(p) hereof; respectively, (iii) afford the Manager the opportunity to conduct a due diligence review in accordance with Section 4(q) hereof and (biv) on October 5file such Earnings 8-K with the Commission, 2020 then the provisions of Section 3(d) shall not be applicable for the period from and thereafterafter the time at which the foregoing conditions shall have been satisfied (or, $25.00 plus any accrued and unpaid dividends per share to, but excludingif later, the date time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of salethe relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, accountants’ letter and opinions and letters of counsel pursuant to this Section 3(e) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, accountants’ letters and legal opinions and letters as provided in Section 4 hereof and (B) this Section 3(e) shall in no way affect or limit the operation of the provisions of Section 3(d), which shall have independent application.
Appears in 7 contracts
Samples: Equity Distribution Agreement (Digital Realty Trust, Inc.), Equity Distribution Agreement (Digital Realty Trust, Inc.), Equity Distribution Agreement (Digital Realty Trust, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.:
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)NYSE, (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager (daily or otherwise) as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Shares sold by the Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on the NYSE at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.
(iii) The Company shall not authorize the issuance and sale of, through any of the Authorized Company Representatives, may instruct and the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales canshall not be effected obligated to use its commercially reasonable efforts to sell, any Share at or above a price lower than the minimum price therefor designated from time to time by the Company Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Manager in any such instructionwriting. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified any reason and at any time, and the obligations of the Company contained in Sections 4(k), 4(l), 4(m), 4(n), 4(o) and 4(p) of this Agreement shall be deferred for any period that the Company has suspended the offering of Shares pursuant to this Section 3(a)(iii) (each, a “Suspension Period”)) and shall recommence upon the termination of such suspension; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiiv) The Subject to the terms and conditions of this Section 3(a), the Manager hereby covenants and agrees not to make that any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than will be made by (A) any method permitted by means of At law deemed to be an “at the Market Offerings and market” offering as defined in Rule 415 under the Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Shares or to or through a market maker or (B) such by any other sales method permitted by law, including but not limited to privately negotiated transactions.
(v) The amount of Shares on behalf of the Company in its capacity as agent of the Company as shall any commission, discount or other compensation to be mutually agreed upon paid by the Company and the Manager.
(iv) The compensation to the Manager, when the Manager is acting as an agent agent, in connection with the sale of the Company, for sales of Shares shall be at a mutually agreed rate, not up to exceed 2.02.00% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The remaining proceedsamount of any commission, after further deduction for discount or other compensation to be paid by the Company to the Manager, when Manager is acting as principal, in connection with the sale of the Shares shall be as separately agreed among the parties hereto at the time of any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, . The remaining proceeds shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to an account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company and wishes to accept amended terms, the Manager and the Company will enter into a separate terms agreement or underwriting or similar agreement setting forth the terms of such Placement. A terms agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any terms agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each terms agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such terms agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(c) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed the lesser of (i) together with all sales of Shares under this Agreement and each of the Alternative Equity Distribution Agreements, the Maximum Amount, and (ii) the amount authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the by the Board, or a duly authorized committee thereof, and notified to the Manager in writing. Further, under no circumstances shall the aggregate offering price of Shares sold pursuant to this Agreement and the Alternative Equity Distribution Agreements, including any separate terms agreement or underwriting or similar agreement covering principal transactions described in Section 1 of this Agreement and the Alternative Equity Distribution Agreements, exceed the Maximum Amount.
(d) If any of the parties has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other parties and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through only one of the Manager or an Alternative Manager on any single given day, but in no event more than one, and the Company shall in no event request that the Manager and one or both of the Alternative Managers sell Shares on the same day.
(f) Notwithstanding anything to any other provision of this Agreement, the contrary hereinCompany agrees that no sales of Shares shall take place, and the Company shall not request the sale of any Shares, and the Manager shall not sell be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information; provided that, notwithstanding the provisions of this paragraph (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereofg), the “Series A Maximum Price” Company agrees that no sales of Shares shall mean: take place during the twenty (a20) through October 4, 2020, the product of calendar days prior to an Earnings Release (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleas defined below).
Appears in 5 contracts
Samples: Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)NYSE, (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Manager shall use its reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Stock sold by the Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on the NYSE at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.
(iii) The Company shall not authorize the issuance and sale of, through any of the Authorized Company Representatives, may instruct and the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales canshall not be effected obligated to use its reasonable efforts to sell, any Share at or above a price lower than the minimum price therefor designated from time to time by the Company Board or a duly authorized committee thereof, and notified to the Manager in any such instructionwriting. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiiv) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At ordinary brokers’ transactions between members of the Market Offerings NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 of the Act (such transactions are hereinafter referred to as “Continuous Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the ManagerManager pursuant to a Terms Agreement.
(ivv) The compensation to the Manager, as an agent of the Company, Manager for sales of the Shares with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, not to exceed 2.02% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) and shall be payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, proceeds shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the Manager to the Company, with payment to be made by the Company promptly after its receipt thereof.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized If the Manager breaches this Agreement by failing to deliver the Net Proceeds to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)Manager.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Date, Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement or as set forth in Section 3(a) of the Alternative Distribution Agreements, as the case may be (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Manager, the Company and the Operating Partnership will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company, the Operating Partnership or the Manager unless and until the Company, the Operating Partnership and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(d) Under no circumstances shall the number and aggregate amount of the Shares sold pursuant to this Agreement, any Alternative Distribution Agreement and any Terms Agreement exceed (i) the Maximum Amount, (ii) the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement, any Alternative Distribution Agreement and any Terms Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing.
(e) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding anything to any other provision of this Agreement the contrary hereinCompany shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus during any accrued other period in which the Company is, or could be deemed to be, in possession of material non-public information or (ii) except as provided in Section 3(g), at any time from and unpaid dividends per share toincluding the date (each, but excludingan “Announcement Date”) on which the Company issues a press release containing, or otherwise publicly announces, its earnings, revenues or other results of operations (each, an “Earnings Announcement”); provided that, unless otherwise agreed between the Company and the Manager, for purposes of this paragraph (f) such period shall be deemed to end on the filing date (the “Filing Date”) of the Company’s next subsequent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, that, in the case of clause (ii), includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement.
(g) If the Company wishes to offer, sell or deliver Shares at any time during the period from and including an Announcement Date through and including the corresponding Filing Date, the date Company shall (i) prepare and deliver to the Manager (with a copy to its counsel) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections, similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Manager, and obtain the consent of sale the Manager to the filing thereof (such consent not to be unreasonably withheld), (ii) provide the Manager with the officers’ certificates, opinions/letters of counsel and accountants’ letter called for by Sections 4(k), (l), (n) and (o), respectively, (iii) afford the Manager the opportunity to conduct a due diligence review in accordance with Section 4(o) and (iv) file such Earnings 8-K with the Commission, then the provisions of clause (iii) of Section 3(f) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied through and including the Filing Date of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K under the Exchange Act, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions/letters of counsel and accountants’ letter pursuant to this Section 3(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions/letters of counsel and accountants’ letters as provided in Section 4 and (B) this Section 3(g) shall in no way affect or limit the operation of the provisions of clauses (i) and (ii) 1.005of Section 3(f), which shall have independent application.
(h) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but in no event by more than one, and the Company shall in no event request that the Manager or any Alternative Manager sell Shares on the same day; provided, however, that: (i) the foregoing limitation shall not apply to (A) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or its Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (bii) such limitation shall not apply on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleday during which no sales are made pursuant to this Agreement.
Appears in 5 contracts
Samples: Equity Distribution Agreement (Campus Crest Communities, Inc.), Equity Distribution Agreement (Campus Crest Communities, Inc.), Equity Distribution Agreement (Campus Crest Communities, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.:
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)NYSE, (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager (daily or otherwise) as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Shares sold by the Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on the NYSE at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.
(iii) The Company shall not authorize the issuance and sale of, through any of the Authorized Company Representatives, may instruct and the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales canshall not be effected obligated to use its commercially reasonable efforts to sell, any Share at or above a price lower than the minimum price therefor designated from time to time by the Company Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Manager in any such instructionwriting. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified any reason and at any time, and the obligations of the Company contained in Sections 4(k), 4(l), 4(m), 4(n), 4(o) and 4(p) of this Agreement shall be deferred for any period that the Company has suspended the offering of Shares pursuant to this Section 3(a)(iii) (each, a “Suspension Period”)) and shall recommence upon the termination of such suspension; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiiv) The Subject to the terms and conditions of this Section 3(a), the Manager hereby covenants and agrees not to make that any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than will be made by (A) any method permitted by means of At law deemed to be an “at the Market Offerings and market” offering as defined in Rule 415 under the Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Shares or to or through a market maker or (B) such by any other sales method permitted by law, including but not limited to privately negotiated transactions.
(v) The amount of Shares on behalf of the Company in its capacity as agent of the Company as shall any commission, discount or other compensation to be mutually agreed upon paid by the Company and the Manager.
(iv) The compensation to the Manager, when the Manager is acting as an agent agent, in connection with the sale of the Company, for sales of Shares shall be at a mutually agreed rate, not up to exceed 2.02.00% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The remaining proceedsamount of any commission, after further deduction for discount or other compensation to be paid by the Company to the Manager, when Manager is acting as principal, in connection with the sale of the Shares shall be as separately agreed among the parties hereto at the time of any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, . The remaining proceeds shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to an account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company and wishes to accept amended terms, the Manager and the Company will enter into a separate terms agreement or underwriting or similar agreement setting forth the terms of such Placement. A terms agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any terms agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each terms agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such terms agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(c) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed the lesser of (i) together with all sales of Shares under this Agreement and each of the Alternative Equity Distribution Agreements, the Maximum Amount, and (ii) the amount authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the by the Board, or a duly authorized committee thereof, and notified to the Manager in writing. Further, under no circumstances shall the aggregate offering price of Shares sold pursuant to this Agreement and the Alternative Equity Distribution Agreements, including any separate terms agreement or underwriting or similar agreement covering principal transactions described in Section 1 of this Agreement and the Alternative Equity Distribution Agreements, exceed the Maximum Amount.
(d) If any of the parties has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other parties and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through only one of the Manager or an Alternative Manager on any single given day, but in no event more than one, and the Company shall in no event request that the Manager and one or both of the Alternative Managers sell Shares on the same day.
(f) Notwithstanding anything to any other provision of this Agreement, the contrary hereinCompany agrees that no sales of Shares shall take place, and the Company shall not request the sale of any Shares, and the Manager shall not sell be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information; provided that, notwithstanding the provisions of this paragraph (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereoff), the “Series A Maximum Price” Company agrees that no sales of Shares shall mean: take place during the twenty (a20) through October 4, 2020, the product of calendar days prior to an Earnings Release (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleas defined below).
Appears in 4 contracts
Samples: Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares on the following termsShares.
(ib) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE Nasdaq Global Select Market (the “Exchange”) is scheduled to close prior to its regular weekday closing time)) (each, (Ba “Trading Day”) the Company, through any of the individuals listed as authorized representatives of that the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager to make such sales as sales agent. On any Trading Day, the Company may instruct the Manager by telephone (confirmed promptly by electronic mailtelecopy or email, which confirmation will be promptly acknowledged by the Manager) as to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager on such day (in any event not in excess of the amount number available for issuance under the Prospectus and the currently effective Registration Statement Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Manager shall use its reasonable efforts to sell all of the Shares so designated by the Company.
(c) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in an amount a number in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company Company’s board of directors or a duly authorized committee thereof, and mutually agreed by the Manager. Subject notified to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionwriting. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailtelecopy or email, which confirmation will be promptly acknowledged by the Manager), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice notice.
(d) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through only one of the Manager or the Joint Manager on any single given day, but in no event by both, and providedthe Company shall in no event request that the Manager and the Joint Manager sell Shares on the same day. Under no circumstances shall the aggregate offering price or number, furtheras the case may be, of Shares sold pursuant to this Agreement and the Additional Equity Distribution Agreement exceed the aggregate offering price or number, as the case may be, of Shares (i) set forth in the preamble paragraph of this Agreement or (ii) available for issuance under the Prospectus and the then currently effective Registration Statement.
(e) If either party has reason to believe that there shall be no obligations the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under Sections 4(o), 4(p), 4(q), 4(r), 4(sthe Exchange Act (applicable to securities with an average daily trading volume of $1,000,000 that are issued by an issuer whose common equity securities have a public float value of at least $150,000,000) and 4(w) are not satisfied with respect to the delivery Company or the Shares, it shall promptly notify the other party and sales of certificates, opinions, Shares under this Agreement shall be suspended until that or comfort letters other exemptive provisions have been satisfied in the judgment of each party.
(f) The gross sales price of any Shares sold by the Manager as sales agent hereunder shall be the market price for shares of the Company’s Common Stock sold by the Manager under this Agreement on the Exchange at the time of such sale. The compensation payable to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares with respect to which the Manager acts as sales agent hereunder shall be at a mutually agreed rate, not equal to exceed 2.01.50% of the gross sales price of any the Shares for amounts of Shares sold by the Manager pursuant to this Section 3(a)Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Manager shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vg) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Exchange each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the gross sales prices of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vih) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Manager (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the its designee’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager any commission commission, discount or other compensation to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viii) At each Time of Sale, Settlement Date If the Company wishes to issue and Representation Date sell the Shares to the Manager as principal pursuant to this Agreement (each, as defined in Section 2(ba “Placement”), Section 3(a)(viit will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Manager and Section 4(o) hereof, respectively), the Company will enter into a terms agreement setting forth the terms of such Placement. The terms set forth in a terms agreement will not be binding on the Company or the Manager unless and until the Company and the Operating Partnership Manager have each executed such terms agreement accepting all of the terms of such terms agreement. In the event of a conflict between the terms of this Agreement and the terms of a terms agreement, the terms of such terms agreement will control. The Manager shall be deemed under no obligation to have affirmed each representation and warranty contained in purchase Shares on a principal basis pursuant to this Agreement. Any obligation of , except as otherwise specifically agreed by the Manager to use its commercially reasonable efforts to sell Shares on behalf of and the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofa terms agreement.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 4 contracts
Samples: Equity Distribution Agreement (Zions Bancorporation /Ut/), Equity Distribution Agreement (Zions Bancorporation /Ut/), Equity Distribution Agreement (Zions Bancorporation /Ut/)
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Trading Day”), (B) the Company, through Company has instructed the Manager by telephone (confirmed promptly by electronic mail to any of the individuals listed as authorized representatives of the Company on Schedule B C hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof5 of this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily or as otherwise agreed to by the Manager (and the Company and in any event not in excess of the amount of Shares available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the ManagerCompany’s board of directors, or a duly authorized committee thereof. Subject to the terms and conditions of this Section 3(a)hereof, the Manager shall use its commercially reasonable efforts to offer and sell on any day all of the Shares designated for the sale by the Company on such day; provided, however, that the Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may sell Shares by any method permitted by law in the reasonable judgment of the Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed to be an “at the marketunderwriter” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any in a transaction that is other existing trading market for the Shares to or through a market maker, or directly to any customer or client than by means of ordinary brokers’ transactions between members of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited NYSE that qualify for delivery of a Prospectus to the NYSE in privately negotiated transactionsaccordance with Rule 153 under the Act.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mailmail from the Company) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction, which price shall not be below the par value of the Common Stock. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailmail from such party), suspend the offering of the Shares for a specified period (a “Suspension Period”)Shares; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At “at the Market Offerings market” offerings as defined in Rule 415 under the Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock or to or through a market maker, and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager, including but not limited to in privately negotiated transactions.
(iv) The compensation to the Manager, as an agent of the Company, for sales of the Shares shall be at a mutually agreed rate, not to exceed 2.01.25% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any documented transaction fees imposed on the Manager by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) ), but in any event no later than the opening of the immediately following Trading Day, setting forth (i) the number aggregate amount of the Shares sold on such day, (ii) the aggregate Net Proceeds to the Company, and (iii) the aggregate compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE third Trading Day following the date on which such sales are made (provided that, if such third trading day is not a business day (as defined below), then settlement will occur on the next succeeding trading day that is also a business day), unless another date shall be agreed upon by the Company and the Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 6 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares eligible for delivery through DTC, in good deliverable formreturn for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectivelybelow), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of each Time of Sale, Settlement Date and the Operating Partnership hereinRepresentation Date, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof5 of this Agreement.
(viiii) Notwithstanding anything If the Company, at its discretion, wishes to issue and sell the Shares to the contrary hereinManager on a principal basis (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ii) In the event the Company engages the Manager for a sale of Shares that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act, the Company and the Manager will agree to compensation that is customary for the Manager with respect to such transactions.
(c) (i) Under no circumstances shall not sell the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement and any Alternative Equity Distribution Agreement would exceed the lesser of (1A) Series A Preferred the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement and any Alternative Equity Distribution Agreement by the Company’s board of directors, or a duly authorized committee thereof. Under no circumstances shall the Company cause or request the offer or sale of any Shares at a price higher lower than the Series A Maximum Price. For minimum price authorized from time to time by the purposes hereofCompany’s board of directors or a duly authorized committee thereof, and notified to the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleManager in writing.
Appears in 4 contracts
Samples: Equity Distribution Agreement (Medical Properties Trust Inc), Equity Distribution Agreement (Medical Properties Trust Inc), Equity Distribution Agreement (Medical Properties Trust Inc)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.:
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)NYSE, (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager (daily or otherwise) as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Shares sold by the Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on the NYSE at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.
(iii) The Company shall not authorize the issuance and sale of, through any of the Authorized Company Representatives, may instruct and the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales canshall not be effected obligated to use its commercially reasonable efforts to sell, any Share at or above a price lower than the minimum price therefor designated from time to time by the Company Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Manager in any such instructionwriting. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified any reason and at any time, and the obligations of the Company contained in Sections 4(k), 4(l), 4(m), 4(n), 4(o) and 4(p) of this Agreement shall be deferred for any period that the Company has suspended the offering of Shares pursuant to this Section 3(a)(iii) (each, a “Suspension Period”)) and shall recommence upon the termination of such suspension; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiiv) The Subject to the terms and conditions of this Section 3(a), the Manager hereby covenants and agrees not to make that any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than will be made by (A) any method permitted by means of At law deemed to be an “at the Market Offerings and market” offering as defined in Rule 415 under the Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Shares or to or through a market maker or (B) such by any other sales method permitted by law, including but not limited to privately negotiated transactions.
(v) The amount of Shares on behalf of the Company in its capacity as agent of the Company as shall any commission, discount or other compensation to be mutually agreed upon paid by the Company and the Manager.
(iv) The compensation to the Manager, when the Manager is acting as an agent agent, in connection with the sale of the Company, for sales of Shares shall be at a mutually agreed rate, not up to exceed 2.02.00% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The remaining proceedsamount of any commission, after further deduction for discount or other compensation to be paid by the Company to the Manager, when Manager is acting as principal, in connection with the sale of the Shares shall be as separately agreed among the parties hereto at the time of any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, . The remaining proceeds shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to an account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company and wishes to accept amended terms, the Manager and the Company will enter into a separate terms agreement or underwriting or similar agreement setting forth the terms of such Placement. A terms agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any terms agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each terms agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such terms agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(c) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed the lesser of (i) together with all sales of Shares under this Agreement and each of the Alternative Equity Distribution Agreement, the Maximum Amount, and (ii) the amount authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the by the Board, or a duly authorized committee thereof, and notified to the Manager in writing. Further, under no circumstances shall the aggregate offering price of Shares sold pursuant to this Agreement and the Alternative Equity Distribution Agreements, including any separate terms agreement or underwriting or similar agreement covering principal transactions described in Section 1 of this Agreement and the Alternative Equity Distribution Agreements, exceed the Maximum Amount.
(d) If any of the parties has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other parties and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through only one of the Manager or an Alternative Manager on any single given day, but in no event more than one, and the Company shall in no event request that the Manager and one or both of the Alternative Managers sell Shares on the same day.
(f) Notwithstanding anything to any other provision of this Agreement, the contrary hereinCompany agrees that no sales of Shares shall take place, and the Company shall not request the sale of any Shares, and the Manager shall not sell be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information; provided that, notwithstanding the provisions of this paragraph (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereofg), the “Series A Maximum Price” Company agrees that no sales of Shares shall mean: take place during the twenty (a20) through October 4, 2020, the product of calendar days prior to an Earnings Release (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleas defined below).
Appears in 3 contracts
Samples: Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc)
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum NumberAmount), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”Offering (as defined below), including including, without limitation limitation, sales made directly by means of ordinary brokers’ transactions on the NYSE, on any other existing trading market for the Shares to or through a market makermaker at market prices prevailing at the time of sale, at prices related to prevailing market prices or directly at negotiated prices. Subject to any customer or client the terms and conditions of this Section 3(a), the Manager shall use its commercially reasonable efforts to offer and sell as sales agent all of the Manager. The Shares designated; provided, however, that the Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation, in the event that an offer or sale of the Shares on behalf of the Company may also sell Shares in the reasonable judgment of the Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes that it may be deemed to be an “underwriter” under the Act in a transaction that is other than by any other method permitted by law, including but not limited means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus in accordance with Rule 153 under the Act (such transactions are hereinafter referred to in privately negotiated transactionsas “At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(n), 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w4(q) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi3 (a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o4(n) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiib) If the Company wishes to issue and sell the Shares other than as set forth in Section 3(a) hereof (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Company, the Operating Partnership and the Manager will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate gross sales proceeds of the Shares sold pursuant to this Agreement exceed the lesser of (A) $50,000,000 and (B) the amount available for offer and sale under the Prospectus and the Registration Statement, nor shall the aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized to be sold under this Agreement by the Company’s Board of Directors, or a duly authorized committee thereof, and notified to the Manager in writing. Further, under no circumstances shall the aggregate gross sales proceeds from Shares sold pursuant to this Agreement together with the Shares sold pursuant to the Alternative Distribution Agreements, including any separate Terms Agreement or similar agreement covering principal transactions described herein and in the Alternative Distribution Agreements, exceed the Maximum Amount.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party, and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares through or to the Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Notwithstanding anything any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale of, any Shares and, by notice to the contrary hereinManager, shall cancel any instructions for the offer or sale of any Shares, and the Manager shall not be obligated to offer or sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereofany Shares, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of during (i) $25.00 plus any accrued and unpaid dividends per share toperiod in which the Company is, but excludingor could be deemed to be, the date in possession of sale and material non-public information or (ii) 1.005; during the fourteen (14) calendar days prior to any public announcement or release disclosing the Company’s results of operations or financial condition for a completed quarterly or annual fiscal period through and including the time that is 24 hours after the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such announcement or release.
(f) The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling the Shares, (ii) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell Shares in accordance with the terms of this Agreement, and (biii) the Manager shall be under no obligation to purchase Shares on October 5a principal basis pursuant to this Agreement unless a Terms Agreement, 2020 in form and thereaftersubstance mutually satisfactory to the Company, $25.00 plus the Operating Partnership and the Manager, shall have been executed by the Company, the Operating Partnership and the Manager.
(g) The Company agrees that any accrued and unpaid dividends per share tooffer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through the Manager or an Alternative Manager on any single given day, but excludingin no event by the Manager and an Alternative Manager, and the date of saleCompany shall in no event request that the Manager and an Alternative Manager sell Shares on the same day.
Appears in 3 contracts
Samples: Equity Distribution Agreement (Education Realty Trust, Inc.), Equity Distribution Agreement (Education Realty Trust, Inc.), Equity Distribution Agreement (Education Realty Trust, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, Agent acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares. The Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the following terms.
Company other than (iA) The by means of ordinary brokers’ transactions that qualify for delivery of a Prospectus to NASDAQ in accordance with Rule 153 under the 1933 Act (such transactions are hereinafter referred to as “At the Market Offerings”) and (B) such other sales of the Shares are to be sold on a daily basis or otherwise behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager Agent. The Agent covenants and agrees that it shall not engage in a sale of Shares on any day the Company’s behalf that (Awould constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act without the Company’s prior written consent. Subject to the previous sentence, the Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is a trading day for not an At the NYSE (other than a day on which Market Offering and the NYSE is scheduled Company consents to close prior such sale, the Company will provide to its regular weekday closing time)the Agent, (B) at the Agent’s request and upon reasonable advance notice to the Company, through any on or prior to the Settlement Date (as defined below) for such transaction, the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 hereof, each dated the individuals listed Settlement Date, and such other documents and information as authorized representatives of the Agent shall reasonably request. Solely with respect to such sales that would constitute a “block” or a “distribution,” the Agent shall use commercially reasonable efforts to assist the Company on Schedule B hereto in obtaining performance of its obligations by each purchaser whose offer to purchase Shares has been solicited by the Agent and accepted by the Company. Each time that the Company wishes to issue and sell Shares hereunder (the each, a “Authorized Company RepresentativesPlacement”), has instructed it will notify the Manager Agent by telephone email notice (confirmed promptly or other method mutually agreed to in writing by electronic mailthe parties) containing the parameters in accordance with which it desires Shares to make sales be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C any minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Schedule I. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule II (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Agent set forth on Schedule II, as such Schedule II may be amended from time to time. If the Agent wishes to accept such proposed terms included in the Placement Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same Business Day on which such Placement Notice is delivered to the Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Agent set forth on Schedule II) accepting such terms (the “Agent Acceptance”) or setting forth the terms that the Agent is willing to accept. Where the terms provided in the Placement Notice are proposed to be modified as provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Agent until the Company delivers to the Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the “Acceptance”), which email or other communication shall be addressed to all of the individuals from the Company and the Agent set forth on Schedule II and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Agent, on the same Business Day. The Placement Notice shall be effective upon receipt by the Company of the Agent Acceptance or, if modified as provided above, upon receipt by the Agent of the Company Acceptance, as the case may be, unless and until (i) the maximum number entire amount of the Shares to be sold covered by the Manager daily Acceptance have been sold, (ii) in accordance with the notice requirements set forth in Section 4(c), the Company suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) the Agreement has been terminated under the provisions of Section 9. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement unless and until the Company delivers a Placement Notice to the Agent and there occurs with respect thereto either (i) an Agent Acceptance or (ii) a Company Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the relevant Acceptance and herein. In the event of a conflict between the terms of this Agreement and the terms of an Acceptance, the terms of the Acceptance will control. Subject to the terms and conditions hereof, upon the existence of an Acceptance, the Agent shall use its commercially reasonable efforts to sell as agreed sales agent Shares designated in the Acceptance up to the amount specified, and otherwise in accordance with the terms of such Acceptance. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling Shares and (B) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
(b) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Agent as sales agent shall not be permitted to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in any event not a number in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makerBoard, or directly to any customer or client of a duly authorized committee thereof, and as set forth in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionapplicable Acceptance. In addition, the Company or the Manager Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering telecopy or email to all of the individuals of the other party set forth on Schedule II, which confirmation will be promptly acknowledged by the receiving party) suspend or refuse to undertake any sale of Shares designated in such Acceptance for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice. Each of the parties hereto agrees that no such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) effective against the other unless it originates from an individual named on Schedule II and 4(w) with respect is made to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination individuals of the Suspension Periodother party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time.
(iiic) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on NASDAQ or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be a maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. In lieu of the Company paying all compensation payable to the Agent for the sale of the Shares pursuant to this Agreement, the Adviser reserves the right to pay any portion of such compensation in its sole discretion. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vd) If acting as sales agent hereunder, the Manager The Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE NASDAQ each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales. For the avoidance of doubt, such written confirmation will be provided to the Company no later than the opening of trading on the immediately following trading day on NASDAQ.
(vie) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in Section 1 of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement, or (iii) authorized from time to time to be issued and sold under this Agreement and the Sales Agreements by the Board, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s Board, or a duly authorized committee thereof, and notified to the Agent in writing as set forth in the applicable Placement Notice. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Agent shall calculate and provide in writing to the Company, on a monthly basis, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(f) Settlement for sales of Shares pursuant to this Section 3(a) 4 and made in accordance with the terms of the applicable Acceptance will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day for NASDAQ (other than a day on the NYSE which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent, and in each case, in accordance with applicable rules and regulations (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the sale of Agent for settlement on such Shares date shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon against payments by the parties hereto, which Agent of the Net Proceeds from the sale of such Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable formsame day funds delivered to an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement DateDate pursuant to this Agreement, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viig) At each Time of SaleApplicable Time, each Settlement Date and each Representation Date (each, as such term is defined in Section 2(b), Section 3(a)(vi6(n) and Section 4(o) hereof, respectivelyherein), the Company Company, the Adviser and the Operating Partnership Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any The obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof4 of this Agreement.
(viiih) Notwithstanding anything The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Common Stock pursuant to this Agreement and the contrary hereinSales Agreements shall only be effected by or through only one of Agent or one of the Other Agents, as applicable, on any single given day as determined by the Manager Company, but in no event by more than one of them, and the Company shall not in no event request that more than one of Agent or the Other Agents sell (1) Series A Preferred Shares at a price higher than shares of Common Stock on the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of same day.
(i) $25.00 plus Except as may be mutually agreed by the Company and the Agent, the Company and the Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any accrued Shares that would be sold, and unpaid dividends per share tothe Agent shall not be obligated to sell, but excludingduring: the period that commences on the fifth (5th) business day prior to the Company’s filing of its quarterly report on Form 10-Q or annual report on Form 10-K, as applicable, and ending on the date on which the Company files with the Commission a Prospectus Supplement under Rule 497 relating to the Shares that includes (i) updated unaudited financial information as of the end of the Company’s most recent quarterly period (the “10-Q Filing”) or (ii) updated audited financial information as of the end of the Company’s most recent fiscal year (the “10-K Filing”), as applicable (each of a 10-Q Filing and/or a 10-K Filing shall also be referred to herein as a “Quarterly 497 Filing”). To the extent the Company releases its earnings for its most recent quarterly period or fiscal year, as applicable (an “Earnings Release”) before it files with the Commission its quarterly report on Form 10-Q for such quarterly period or annual report on Form 10-K for such fiscal year, as applicable, then the Agent and the Company agree that no sales of Shares shall take place for the period beginning on the date of sale the Earnings Release and (ii) 1.005; and (b) ending on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salethe applicable Quarterly 497 Filing. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Agent, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is in possession of material non-public information.
Appears in 3 contracts
Samples: Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de), Sales Contracts (Gladstone Investment Corporation\de)
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE NASDAQ (a “Trading Day”) (other than a day Trading Day on which the NYSE NASDAQ is scheduled to close prior to its regular weekday closing time), (B) the Company, through Company has instructed the Manager by telephone (confirmed promptly by electronic mail to any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) often as daily the maximum number of Shares to be sold by the Manager daily or as otherwise agreed to by the Manager (and the Company and in any event not in excess of the amount of Shares available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company Company’s board of directors, or a duly authorized committee thereof, and mutually agreed by notified to the ManagerManager in writing. Subject to the terms and conditions of this Section 3(a)hereof, the Manager may shall use its commercially reasonable efforts to offer and sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering all of the Shares for a specified period (a “Suspension Period”)designated on any day; provided, however, that (A) such Suspension Period shall apply equally to the Manager shall have no obligation to offer or sell any Shares, and each Alternative Manager the Company acknowledges and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice and provided, further, agrees that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that shall have no such obligations shall recommence on obligation, in the termination event an offer or sale of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company may in its capacity as agent the judgment of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall Manager constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 3 contracts
Samples: Equity Distribution Agreement (Apollo Investment Corp), Equity Distribution Agreement (Apollo Investment Corp), Equity Distribution Agreement (Apollo Investment Corp)
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by Each time that the Company wishes to issue and the Manager sell Shares on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time) pursuant to this Agreement (each, a “Placement”), (B) it will instruct the Company, through any Manager by telephone of the individuals listed parameters in accordance with which it desires Shares to be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, the minimum price below which sales may not be made and any limitation on the number of Shares that may be sold in any one day (a “Placement Notice”). The Manager will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same business day (as defined below) on which such Placement Notice is delivered to the Manager, issue to the Company a notice by email addressed to all of the authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”)) confirming all of the parameters of the Placement. The Placement Notice shall be effective upon receipt by any of the Authorized Company Representatives of the email notice from the Manager, has instructed unless and until (i) the Manager entire amount of the Shares covered by telephone the Placement Notice have been sold, (confirmed promptly by electronic mailii) to make sales of Shares and in accordance with Section 3(a)(ii) hereof, the Company suspends or terminates the Placement Notice, (Ciii) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in issues a notice delivered by electronic mail to subsequent Placement Notice with parameters superseding those on the Manager substantially in the form attached hereto as Schedule C (a “earlier dated Placement Notice”, or (iv) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance this Agreement has been terminated under the Prospectus and the Registration Statement or in an amount in excess provisions of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the ManagerSection 9. Subject to the terms and conditions of this Section 3(a)hereof, the Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated in the Placement Notice; provided, however, that the Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation in the event an offer or sale of the Shares on behalf of the Company may sell Shares by any method permitted by law in the judgment of the Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed to be an “at the marketunderwriter” offering as defined in Rule 415 under the 1933 Act in a transaction that is other than (A) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the 1933 Act or (B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the transactions described in (A) and (B) are hereinafter referred to as “At the Market OfferingOfferings”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailmail from such party), suspend the offering of the Shares for pursuant to this Agreement or suspend or terminate a specified period (a “Suspension Period”)previously issued Placement Notice; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of the Shares shall be at a mutually agreed rate, not up to exceed 2.01.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant applicable time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number aggregate amount of the Shares sold on such day, (ii) the aggregate Net Proceeds to the Company, and (iii) the aggregate compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE third Trading Day following the date on which such sales are made (provided that, if such third Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day), unless another date shall be agreed upon by the Company and the Manager (each such date, a “Settlement Date”). As used herein, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of electronically transferring the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties heretoCompany and the Manager, which in all cases shall be freely tradable, transferable, registered shares eligible for delivery through DTC, in good deliverable formreturn for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o4(q) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation its representations and warranty warranties contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership hereinCompany, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof5 of this Agreement.
(viiii) Notwithstanding anything If the Company wishes to issue and sell the Shares other than as set forth in Section 3(a) of this Agreement or as set forth in Section 3(a) of any Alternative Equity Distribution Agreement, it may elect, in its sole discretion, to notify the Manager of the proposed terms of such sale. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. For avoidance of doubt, nothing contained in this Agreement shall be construed to require the Company to engage the Manager or any Alternative Managers in connection with the offer and sale of any of the Company’s securities, including shares of the Common Stock, whether in connection with an underwriting offering or otherwise.
(c) In the event the Company engages the Manager for a sale of Shares that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act, the Company and the Manager will agree to compensation that is customary for the Manager with respect to such transactions.
(d) (i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the contrary hereinsale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement and any Alternative Equity Distribution Agreement would exceed the lesser of (A) the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement and any Alternative Equity Distribution Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares (i) at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and notified to the Manager in writing and (ii) at a price (net of the Manager’s commission, discount or other compensation for such sales payable by the Company pursuant to this Section 4) lower than the Company’s then current net asset value per share (as calculated pursuant to the 1940 Act), unless the Company has received the requisite approval from the Company’s board of directors or a duly authorized committee thereof, and notifies the Manager in writing.
(ii) If any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other parties and sales of the Shares under this Agreement and any Alternative Equity Distribution Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Manager (which such request may be by electronic mail), the Manager shall not sell (1) Series A Preferred Shares at promptly calculate and provide in writing to the Company a price higher than report setting forth, for the Series A Maximum Price. For the purposes hereofprior week, the “Series A Maximum Price” average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(e) Each sale of the Shares to or through the Manager or any Alternative Manager, as applicable, shall mean: (a) through October 4be made in accordance with the terms of this Agreement or, 2020if applicable, a Terms Agreement, or the respective Alternative Equity Distribution Agreement or, if applicable, an Alternative Terms Agreement, as applicable. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the product price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, any provisions relating to the granting of an option to purchase additional Shares for the purpose of covering over-allotments, and the time and date (ieach such time and date being referred to herein as a “Time of Delivery”) $25.00 plus and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any accrued requirements for opinions of counsel, accountants’ letters and unpaid dividends per share to, but excluding, officers’ certificates pursuant to Section 5 hereof and any other information or documents required by the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleManager.
Appears in 3 contracts
Samples: Equity Distribution Agreement (Main Street Capital CORP), Equity Distribution Agreement (Main Street Capital CORP), Equity Distribution Agreement (Main Street Capital CORP)
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005the sum of (A) 1.0 and (B) (x) the number of complete years until October 4, 2021 remaining at the date of sale multiplied by (y) 0.0050; and (b) on October 54, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 3 contracts
Samples: Equity Distribution Agreement (City Office REIT, Inc.), Equity Distribution Agreement (City Office REIT, Inc.), Equity Distribution Agreement (City Office REIT, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, Agent acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares. The Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the following terms.
Company other than (iA) The by means of ordinary brokers’ transactions that qualify for delivery of a Prospectus to Nasdaq in accordance with Rule 153 under the 1933 Act (such transactions are hereinafter referred to as “At the Market Offerings”) and (B) such other sales of the Shares are to be sold on a daily basis or otherwise behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager Agent. The Agent covenants and agrees that it shall not engage in a sale of Shares on any day the Company’s behalf that (Awould constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act without the Company’s prior written consent. Subject to the previous sentence, the Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is a trading day for not an At the NYSE (other than a day on which Market Offering and the NYSE is scheduled Company consents to close prior such sale, the Company will provide to its regular weekday closing time)the Agent, (B) at the Agent’s request and upon reasonable advance notice to the Company, through any on or prior to the Settlement Date (as defined below) for such transaction, the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 hereof, each dated the individuals listed Settlement Date, and such other documents and information as authorized representatives of the Agent shall reasonably request. Solely with respect to such sales that would constitute a “block” or a “distribution,” the Agent shall use commercially reasonable efforts to assist the Company on Schedule B hereto in obtaining performance of its obligations by each purchaser whose offer to purchase Shares has been solicited by the Agent and accepted by the Company. Each time that the Company wishes to issue and sell Shares hereunder (the each, a “Authorized Company RepresentativesPlacement”), has instructed it will notify the Manager Agent by telephone email notice (confirmed promptly or other method mutually agreed to in writing by electronic mailthe parties) containing the parameters in accordance with which it desires Shares to make sales be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C any minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Schedule I. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule II (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Agent set forth on Schedule II, as such Schedule II may be amended from time to time. If the Agent wishes to accept such proposed terms included in the Placement Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same Business Day on which such Placement Notice is delivered to the Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Agent set forth on Schedule II) accepting such terms (the “Agent Acceptance”) or setting forth the terms that the Agent is willing to accept. Where the terms provided in the Placement Notice are proposed to be modified as provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Agent until the Company delivers to the Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the “Acceptance”), which email or other communication shall be addressed to all of the individuals from the Company and the Agent set forth on Schedule II and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Agent, on the same Business Day. The Placement Notice shall be effective upon receipt by the Company of the Agent Acceptance or, if modified as provided above, upon receipt by the Agent of the Company Acceptance, as the case may be, unless and until (i) the maximum number entire amount of the Shares to be sold covered by the Manager daily Acceptance have been sold, (ii) in accordance with the notice requirements set forth in Section 4(c), the Company suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) the Agreement has been terminated under the provisions of Section 9. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement unless and until the Company delivers a Placement Notice to the Agent and there occurs with respect thereto either (i) an Agent Acceptance or (ii) a Company Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the relevant Acceptance and herein. In the event of a conflict between the terms of this Agreement and the terms of an Acceptance, the terms of the Acceptance will control. Subject to the terms and conditions hereof, upon the existence of an Acceptance, the Agent shall use its commercially reasonable efforts to sell as agreed sales agent Shares designated in the Acceptance up to the amount specified, and otherwise in accordance with the terms of such Acceptance. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling Shares and (B) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
(b) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Agent as sales agent shall not be permitted to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in any event not a number in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makerBoard, or directly to any customer or client of a duly authorized committee thereof, and as set forth in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionapplicable Acceptance. In addition, the Company or the Manager Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering telecopy or email to all of the individuals of the other party set forth on Schedule II, which confirmation will be promptly acknowledged by the receiving party) suspend or refuse to undertake any sale of Shares designated in such Acceptance for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice. Each of the parties hereto agrees that no such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) effective against the other unless it originates from an individual named on Schedule II and 4(w) with respect is made to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination individuals of the Suspension Periodother party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time.
(iiic) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be a maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. In lieu of the Company paying all compensation payable to the Agent for the sale of the Shares pursuant to this Agreement, the Adviser reserves the right to pay any portion of such compensation in its sole discretion. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vd) If acting as sales agent hereunder, the Manager The Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Nasdaq each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales. For the avoidance of doubt, such written confirmation will be provided to the Company no later than the opening of trading on the immediately following trading day on Nasdaq.
(vie) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in Section 1 of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement, or (iii) authorized from time to time to be issued and sold under this Agreement and the Sales Agreements by the Board, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s Board, or a duly authorized committee thereof, and notified to the Agent in writing as set forth in the applicable Placement Notice. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Agent shall calculate and provide in writing to the Company, on a monthly basis, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(f) Settlement for sales of Shares pursuant to this Section 3(a) 4 and made in accordance with the terms of the applicable Acceptance will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by on and after May 28, 2024, the Company and the Managerfirst business day) that is also a trading day for Nasdaq (other than a day on the NYSE which Nasdaq is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent, and in each case, in accordance with applicable rules and regulations (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the sale of Agent for settlement on such Shares date shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon against payments by the parties hereto, which Agent of the Net Proceeds from the sale of such Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable formsame day funds delivered to an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement DateDate pursuant to this Agreement, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viig) At each Time of SaleApplicable Time, each Settlement Date and each Representation Date (each, as such term is defined in Section 2(b), Section 3(a)(vi6(n) and Section 4(o) hereof, respectivelyherein), the Company Company, the Adviser and the Operating Partnership Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any The obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof4 of this Agreement.
(viiih) Notwithstanding anything The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Common Stock pursuant to this Agreement and the contrary hereinSales Agreements shall only be effected by or through only the Agent or one of the Other Agents, as applicable, on any single given day as determined by the Manager Company, but in no event by more than one of them, and the Company shall not in no event request that more than one of Agent or the Other Agents sell (1) Series A Preferred Shares at a price higher than shares of Common Stock on the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of same day.
(i) $25.00 plus Except as may be mutually agreed by the Company and the Agent, the Company and the Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any accrued Shares that would be sold, and unpaid dividends per share tothe Agent shall not be obligated to sell, but excludingduring: the period that commences on the fifth (5th) business day prior to the Company’s filing of its quarterly report on Form 10-Q or annual report on Form 10-K, as applicable, and ending on the respective date on which the Company files its quarterly report on Form 10-Q (the “10-Q Filing”) or its annual report on Form 10-K (the “10-K Filing”) (each of a 10-Q Filing and/or a 10-K Filing shall also be referred to herein as a “Quarterly Filing”). To the extent the Company releases its earnings for its most recent quarterly period or fiscal year, as applicable (an “Earnings Release”) before it files with the Commission its quarterly report on Form 10-Q for such quarterly period or annual report on Form 10-K for such fiscal year, as applicable, then the Agent and the Company agree that no sales of Shares shall take place for the period beginning on the date of sale the Earnings Release and (ii) 1.005; and (b) ending on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salethe applicable Quarterly Filing. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Agent, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is in possession of material non-public information.
Appears in 3 contracts
Samples: Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de)
Sale and Delivery of Shares. (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 (1) to issue and sell through or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts consistent with its normal trading and sales practice to sell, as sales agent for the Company, the Shares, and (2) in consultation with the Forward Purchaser and the Manager, to instruct the Forward Purchaser to borrow, offer and sell Shares through the Manager, as forward seller, in each case on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations covenants and conditions under Section 4 and Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum NumberAmount, or in excess of the number of Shares approved for listing on the NYSE), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Such instruction shall also specify whether such Shares (i) will be sold through the Manager, as sales agent or principal, in accordance with clause 3(a)(1) above, or (ii) borrowed by the Forward Purchaser and sold through the Manager, as forward seller, in connection with hedging a forward stock purchase transaction pursuant to any Confirmations in accordance with clause 3(a)(2) above. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “At the Market Offering (as defined below), including, without limitation, sales made by means of ordinary brokers’ transactions on the NYSE, to or through a market maker at market prices prevailing at the markettime of sale, at prices related to prevailing market prices or at negotiated prices. Subject to the terms and conditions specified herein (including, without limitation, the accuracy of the representations and warranties of each of the Company and the Operating Partnership and the performance by the Company and the Operating Partnership of their respective covenants and other obligations, contained herein and the satisfaction of the additional conditions specified in Section 6 hereof), the Manager shall use its commercially reasonable efforts consistent with its normal trading and sales practice to offer and sell as sales agent all of the Shares designated; provided, however, that the Company acknowledges and agrees that neither the Manager nor the Forward Purchaser, as applicable, shall have any obligation to borrow, offer or sell any Shares in the event that a borrowing, offer or sale of the Shares on behalf of the Company or the Forward Purchaser may in the reasonable judgment of the Manager constitute the sale of a “block” offering as defined under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes that it may be deemed to be an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus in accordance with Rule 415 153 under the Act (such transactions are hereinafter referred to individually as an “At the Market Offering” and collectively as the “At the Market Offerings”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder sold, or with respect to Shares that the Company has agreed to sell or the Forward Purchaser has agreed to borrow and deliver pursuant to this Agreement, any Confirmation or Terms Agreement prior to the giving of such notice and providednotice, and, provided further, that there shall be no obligations under Sections 4(n), 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w4(q) with respect to the delivery of certificates, opinions, or comfort letters to the Manager and the Forward Purchaser during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Each of the Manager and the Forward Purchaser, as applicable, hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The In connection with sales pursuant to Section 3(a)(1) of this Agreement, the compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). In connection with sales pursuant to Section 3(a)(2) of this Agreement, the compensation payable to the Manager for sales of Shares with respect to which the Manager acts as forward seller shall be reflected in a reduction of an amount not to exceed 2.0% of the Initial Forward Price (as such term is defined in each applicable Confirmation). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company or the Forward Purchaser, as applicable, from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the aggregate Net Proceeds to the CompanyCompany or the Forward Purchaser, as applicable, and (iii) the aggregate compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made made, unless another date shall be agreed to in writing by the Company and the Manager. On each date of settlement for the sale of Shares through the Manager as sales agent pursuant to Section 3(a)(1) hereof (each such date, a “Direct Settlement Date”). On , or through the Manager as forward seller pursuant to Section 3(a)(2) hereof (each such date, a “Forward Settlement Date” and, together with a Direct Settlement Date, a “Settlement Date”), the Net Proceeds from the sale of such Shares shall be delivered to the Company or the Forward Purchaser, as applicable, in same day funds to an account designated by the Company or the Forward Purchaser, as applicable, in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company (or its transfer agent agent) or the Forward Purchaser, as applicable, to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares through the Manager as sales agent on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o4(n) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiib) If the Company wishes to borrow or issue and sell the Shares other than as set forth in Section 3(a) hereof (each, a “Transaction”), it will notify the Manager and the Forward Purchaser, as applicable, of the proposed terms of such Transaction. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Company and the Manager will enter into a Terms Agreement or the Company and the Forward Purchaser will enter into a Confirmation setting forth the terms of such Transaction. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement or Confirmation, as applicable, the terms of such Terms Agreement or Confirmation, as applicable, will control.
(i) Under no circumstances shall the aggregate gross sales proceeds from Shares sold pursuant to this Agreement together with the Common Stock sold pursuant to the Alternative Distribution Agreements, including any separate Terms Agreements or similar agreement covering principal transactions described herein and in the Alternative Distribution Agreements, exceed the lesser of (A) the Maximum Amount and (B) the amount available for offer and sale under the Prospectus and the Registration Statement.
(ii) If any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other parties hereto, and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares through or to the Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Notwithstanding anything any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale of, any Shares and, by notice to the contrary hereinManager, shall cancel any instructions for the offer or sale of any Shares, and the Manager shall not be obligated to offer or sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereofany Shares, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of during (i) $25.00 plus any accrued and unpaid dividends per share toperiod in which the Company is, but excludingor could be deemed to be, the date in possession of sale and material non-public information or (ii) 1.005; during the fourteen (14) calendar days prior to any public announcement or release disclosing the Company’s results of operations or financial condition for a completed quarterly or annual fiscal period through and including the time that is 24 hours after the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such announcement or release.
(f) The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling the Shares, (ii) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell Shares in accordance with the terms of this Agreement, and (biii) the Manager shall be under no obligation to purchase Shares on October 5a principal basis pursuant to this Agreement unless a Terms Agreement, 2020 in substantially the form attached hereto as Exhibit A, shall have been executed by the Company, the Operating Partnership and thereafterthe Manager.
(g) The Company agrees that any offer to sell, $25.00 plus any accrued solicitation of an offer to buy, or any sales of Shares shall only be effected by or through the Manager or an Alternative Manager on any single given day, but in no event by the Manager and unpaid dividends an Alternative Manager, and the Company shall in no event request that the Manager and an Alternative Manager sell Shares on the same day.
(h) As set out in Paragraph 7(f)(i) under the Confirmation and notwithstanding anything herein to the contrary, in the event that either (i) the Forward Purchaser is unable to borrow and deliver any Shares for sale under this Agreement or (ii) in the commercially reasonable judgment of the Forward Purchaser, it is either impracticable to do so or the Forward Purchaser would incur a stock loan cost that is equal to or greater than 200 basis points per share annum to do so, then the Manager shall be required to sell on behalf of the Forward Purchaser only the aggregate number of Shares that the Forward Purchaser is able to, but excludingand that it is practicable to, the date of saleso borrow below such cost.
Appears in 3 contracts
Samples: Equity Distribution Agreement (Education Realty Operating Partnership L P), Equity Distribution Agreement (Education Realty Operating Partnership L P), Equity Distribution Agreement (Education Realty Operating Partnership L P)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, Agent acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares. The Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the following terms.
Company other than (iA) The by means of ordinary brokers’ transactions that qualify for delivery of a Prospectus to Nasdaq in accordance with Rule 153 under the 1933 Act (such transactions are hereinafter referred to as “At the Market Offerings”) and (B) such other sales of the Shares are to be sold on a daily basis or otherwise behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager Agent. The Agent covenants and agrees that it shall not engage in a sale of Shares on any day the Company’s behalf that (Awould constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act without the Company’s prior written consent. Subject to the previous sentence, the Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is a trading day for not an At the NYSE (other than a day on which Market Offering and the NYSE is scheduled Company consents to close prior such sale, the Company will provide to its regular weekday closing time)the Agent, (B) at the Agent’s request and upon reasonable advance notice to the Company, through any on or prior to the Settlement Date (as defined below) for such transaction, the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 hereof, each dated the individuals listed Settlement Date, and such other documents and information as authorized representatives of the Agent shall reasonably request. Solely with respect to such sales that would constitute a “block” or a “distribution,” the Agent shall use commercially reasonable efforts to assist the Company on Schedule B hereto in obtaining performance of its obligations by each purchaser whose offer to purchase Shares has been solicited by the Agent and accepted by the Company. Each time that the Company wishes to issue and sell Shares hereunder (the each, a “Authorized Company RepresentativesPlacement”), has instructed it will notify the Manager Agent by telephone email notice (confirmed promptly or other method mutually agreed to in writing by electronic mailthe parties) containing the parameters in accordance with which it desires Shares to make sales be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C any minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Schedule I. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule II (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Agent set forth on Schedule II, as such Schedule II may be amended from time to time. If the Agent wishes to accept such proposed terms included in the Placement Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same Business Day on which such Placement Notice is delivered to the Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Agent set forth on Schedule II) accepting such terms (the “Agent Acceptance”) or setting forth the terms that the Agent is willing to accept. Where the terms provided in the Placement Notice are proposed to be modified as provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Agent until the Company delivers to the Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the “Acceptance”), which email or other communication shall be addressed to all of the individuals from the Company and the Agent set forth on Schedule II and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Agent, on the same Business Day. The Placement Notice shall be effective upon receipt by the Company of the Agent Acceptance or, if modified as provided above, upon receipt by the Agent of the Company Acceptance, as the case may be, unless and until (i) the maximum number entire amount of the Shares to be sold covered by the Manager daily Acceptance have been sold, (ii) in accordance with the notice requirements set forth in Section 4(c), the Company suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) the Agreement has been terminated under the provisions of Section 9. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement unless and until the Company delivers a Placement Notice to the Agent and there occurs with respect thereto either (i) an Agent Acceptance or (ii) a Company Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the relevant Acceptance and herein. In the event of a conflict between the terms of this Agreement and the terms of an Acceptance, the terms of the Acceptance will control. Subject to the terms and conditions hereof, upon the existence of an Acceptance, the Agent shall use its commercially reasonable efforts to sell as agreed sales agent Shares designated in the Acceptance up to the amount specified, and otherwise in accordance with the terms of such Acceptance. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling Shares and (B) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
(b) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Agent as sales agent shall not be permitted to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in any event not a number in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makerBoard, or directly to any customer or client of a duly authorized committee thereof, and as set forth in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionapplicable Acceptance. In addition, the Company or the Manager Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering telecopy or email to all of the individuals of the other party set forth on Schedule II, which confirmation will be promptly acknowledged by the receiving party) suspend or refuse to undertake any sale of Shares designated in such Acceptance for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice. Each of the parties hereto agrees that no such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) effective against the other unless it originates from an individual named on Schedule II and 4(w) with respect is made to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination individuals of the Suspension Periodother party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time.
(iiic) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be a maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. In lieu of the Company paying all compensation payable to the Agent for the sale of the Shares pursuant to this Agreement, the Adviser reserves the right to pay any portion of such compensation in its sole discretion. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vd) If acting as sales agent hereunder, the Manager The Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Nasdaq each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales. For the avoidance of doubt, such written confirmation will be provided to the Company no later than the opening of trading on the immediately following trading day on Nasdaq.
(vie) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in Section 1 of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement, or (iii) authorized from time to time to be issued and sold under this Agreement and the Sales Agreements by the Board, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s Board, or a duly authorized committee thereof, and notified to the Agent in writing as set forth in the applicable Placement Notice. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Agent shall calculate and provide in writing to the Company, on a monthly basis, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(f) Settlement for sales of Shares pursuant to this Section 3(a) 4 and made in accordance with the terms of the applicable Acceptance will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day for Nasdaq (other than a day on the NYSE which Nasdaq is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent, and in each case, in accordance with applicable rules and regulations (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the sale of Agent for settlement on such Shares date shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon against payments by the parties hereto, which Agent of the Net Proceeds from the sale of such Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable formsame day funds delivered to an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement DateDate pursuant to this Agreement, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viig) At each Time of SaleApplicable Time, each Settlement Date and each Representation Date (each, as such term is defined in Section 2(b), Section 3(a)(vi6(n) and Section 4(o) hereof, respectivelyherein), the Company Company, the Adviser and the Operating Partnership Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any The obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof4 of this Agreement.
(viiih) Notwithstanding anything The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Common Stock pursuant to this Agreement and the contrary hereinSales Agreements shall only be effected by or through only one of Agent or one of the Other Agents, as applicable, on any single given day as determined by the Manager Company, but in no event by more than one of them, and the Company shall not in no event request that more than one of Agent or the Other Agents sell (1) Series A Preferred Shares at a price higher than shares of Common Stock on the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of same day.
(i) $25.00 plus Except as may be mutually agreed by the Company and the Agent, the Company and the Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any accrued Shares that would be sold, and unpaid dividends per share tothe Agent shall not be obligated to sell, but excludingduring: the period that commences on the fifth (5th) business day prior to the Company’s filing of its quarterly report on Form 10-Q or annual report on Form 10-K, as applicable, and ending on the respective date on which the Company files its quarterly report on Form 10-Q (the “10-Q Filing”) or its annual report on Form 10-K (the “10-K Filing”) (each of a 10-Q Filing and/or a 10-K Filing shall also be referred to herein as a “Quarterly Filing”). To the extent the Company releases its earnings for its most recent quarterly period or fiscal year, as applicable (an “Earnings Release”) before it files with the Commission its quarterly report on Form 10-Q for such quarterly period or annual report on Form 10-K for such fiscal year, as applicable, then the Agent and the Company agree that no sales of Shares shall take place for the period beginning on the date of sale the Earnings Release and (ii) 1.005; and (b) ending on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salethe applicable Quarterly Filing. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Agent, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is in possession of material non-public information.
Appears in 3 contracts
Samples: Sales Agreement (Gladstone Investment Corporation\de), Sales Contracts (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell exclusively through or to the Manager, Agent acting as sales agent and/or principal, or directly to the Agent acting as and when it provides instructions, in its discretion, for the sale of the Sharesprincipal from time to time, and the Manager Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares. Sales of the Shares, if any, through the Agent acting as sales agent or directly to the Agent acting as principal may be made in negotiated transactions or transactions that are deemed to be “at the market offerings” as defined in Rule 415 of the 1933 Act. Anything to the contrary notwithstanding in this Agreement, without the Company’s prior written consent (which may be included explicit authorization in a Terms Agreement), the Agent may not place Shares on by any method other than those deemed to be an “at the following termsmarket offering” as defined in Rule 415 of the 1933 Act. Nothing contained herein restricts, nor may be deemed to restrict, the Company from undertaking another offering of its securities pursuant to a separate registration under the 1933 Act (or any exemption from such registration), or another offering under the Registration Statement, provided the Company complies with Section 3(p).
(ib) The Subject to the applicable Terms Agreement or instructions to sell shares delivered pursuant to this Section 2(b), the Shares to be sold pursuant to this Agreement are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE Nasdaq is scheduled to close prior to its regular weekday closing time), (Beach, a “Trading Day”) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) that the Company has satisfied its obligations under Section 6 hereofof this Agreement and that the Company has instructed the Agent to make such sales. The For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Company will designate or its Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which JonesTrading is acting for the Company in a notice delivered capacity other than as Agent under this Agreement. On any Trading Day, the Company may instruct the Agent by electronic mail telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged by the Agent) as to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum aggregate dollar value or number of Shares to be sold by the Manager daily as agreed to by the Manager Agent on such day (in any event not in excess of the amount number available for issuance under the Prospectus and the currently effective Registration Statement Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Agent shall use its commercially reasonable efforts to sell as sales agent all of the Shares so designated by the Company and in the manner and on the terms so designated in writing by the Company. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling the Shares, (B) the Agent will incur no liability or obligation to the Company or any other person or entity if they do not sell Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement, and (C) the Agent shall be under no obligation to purchase Shares on a principal basis except as otherwise specifically agreed by each of the Agent and the Company pursuant to a Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in an amount a number in excess of the amount number or maximum aggregate dollar value of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company Company’s board of directors, or a duly authorized committee thereof, and mutually agreed by the Manager. Subject notified to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined Agent in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionwriting. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail)Agent, suspend the offering of the Shares or the Agent may, upon notice to the Company, suspend the offering of the Shares with respect to which the Agent is acting as sales agent for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Any notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect given pursuant to the delivery of certificatespreceding sentence may be given by telephone (confirmed promptly by telecopy or email, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodwhich confirmation will be promptly acknowledged).
(iiid) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on the Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be equal to 2.5% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. The Company may sell Shares to the Agent, acting as principal, at a price agreed upon with the Agent at the relevant Applicable Time and pursuant to a separate Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(ve) If acting as a sales agent hereunder, the Manager Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Nasdaq, each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager such Agent with respect to such sales.
(vif) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement and any Terms Agreement exceed the aggregate offering price or number, as the case may be, of shares of Common Stock (i) set forth in the preamble paragraph of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement, (iii) authorized from time to time to be issued and sold under this Agreement or any Terms Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing or (iv) authorized but unissued pursuant to the Company’s certificate of incorporation. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing.
(g) Settlement for sales of Shares pursuant to this Section 3(a) 2 will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company to the Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account at The Depository Trust Company against payments by the Agent of the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds delivered to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against shall, in addition to any lossindemnification obligation pursuant to Section 7, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viih) At each Time Notwithstanding any other provision of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)this Agreement, the Company and the Operating Partnership Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is, or would reasonably be deemed to have affirmed each representation and warranty contained be, in this Agreement. possession of material non-public information.
(i) Any obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 2 contracts
Samples: Capital on Demand Sales Agreement (Tracon Pharmaceuticals, Inc.), Capital on Demand Sales Agreement (Tracon Pharmaceuticals, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to continue to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE Nasdaq Global Select Market (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Nasdaq”), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Manager shall use its reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Stock sold by the Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on the Nasdaq at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.
(iii) The Company shall not authorize the issuance and sale of, through any of the Authorized Company Representatives, may instruct and the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales canshall not be effected obligated to use its reasonable efforts to sell, any Share at or above a price lower than the minimum price therefor designated from time to time by the Company Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Manager in any such instructionwriting. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiiv) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings ordinary brokers’ transactions between members of Nasdaq that qualify for delivery of a prospectus to Nasdaq in accordance with Rule 153 (such transactions are hereinafter referred to as “Continuous Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the ManagerManager pursuant to a Terms Agreement.
(ivv) The compensation to the Manager, as an agent of the Company, Manager for sales of the Shares with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, not to exceed 2.02% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) and payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”), shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE Nasdaq each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the Manager to the Company, with payment to be made by the Company promptly after its receipt thereof.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized If the Manager breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)Manager.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Date, Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Filing Date (as defined in Section 4(o) hereof, respectively4(x)), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) If the Company wishes to issue and sell the Shares pursuant to this Agreement other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares and the time, date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(d) Under no circumstances shall the number and aggregate amount of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) the aggregate amount set forth in Section 1, (ii) the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing.
(e) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding anything to any other provision of this Agreement the contrary hereinCompany shall not request the sale of any Shares that would be sold, and the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereofbe obligated to sell, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus during any accrued and unpaid dividends per share toperiod in which the Company is, but excludingor could be deemed to be, the date in possession of sale and material non-public information or (ii) 1.005; except as provided in Section 3(g) hereof, at any time from and including the date on which the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement.
(g) If the Company wishes to offer or sell Shares at any time during the period from and including an Earnings Announcement through and including the time that is 24 hours after the corresponding Filing Time, the Company shall first (i) prepare and deliver to the Manager (with a copy to counsel to the Manager) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Manager and, prior to its filing, obtain the consent of the Manager to such filing (which consent shall not be unreasonably withheld), (iii) provide the Manager with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Sections 4(k), (l), (m) and (bn), respectively, hereof, (iv) on October 5afford the Manager the opportunity to conduct a due diligence review in accordance with Section 4(o) hereof prior to filing such Earnings 8-K and (v) file such Earnings 8-K with the Commission, 2020 then the provision of clause (ii) of Section 3(f) shall not be applicable for the period from and thereafterafter the time at which the foregoing conditions shall have been satisfied (or, $25.00 plus any accrued and unpaid dividends per share to, but excludingif later, the date time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of salethe relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 3(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 4(k), (l), (m) and (n), respectively, hereof, and (B) this Section 3(g) shall in no way affect or limit the operation of clause (i) in Section 3(f), which shall have independent application.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Clean Energy Fuels Corp.), Equity Distribution Agreement (Clean Energy Fuels Corp.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares on the following termsShares.
(ib) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE Nasdaq Global Select Market (the “Exchange”) is scheduled to close prior to its regular weekday closing time)) (each, (Ba “Trading Day”) the Company, through any of the individuals listed as authorized representatives of that the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager to make such sales as sales agent. On any Trading Day, the Company may instruct the Manager by telephone (confirmed promptly by electronic mailtelecopy or email, which confirmation will be promptly acknowledged by the Manager) as to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager on such day (in any event not in excess of the amount number available for issuance under the Prospectus and the currently effective Registration Statement Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Manager shall use its reasonable efforts to sell all of the Shares so designated by the Company.
(c) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in an amount a number in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company Company’s board of directors or a duly authorized committee thereof, and mutually agreed by the Manager. Subject notified to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionwriting. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailtelecopy or email, which confirmation will be promptly acknowledged by the Manager), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice notice.
(d) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through only one of the Manager or the Joint Manager on any single given day, but in no event by both, and providedthe Company shall in no event request that the Manager and the Joint Manager sell Shares on the same day. Under no circumstances shall the aggregate offering price or number, furtheras the case may be, of Shares sold pursuant to this Agreement and the Additional Equity Distribution Agreement exceed the aggregate offering price or number, as the case may be, of Shares (i) set forth in the preamble paragraph of this Agreement or (ii) available for issuance under the Prospectus and the then currently effective Registration Statement.
(e) If either party has reason to believe that there shall be no obligations the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under Sections 4(o), 4(p), 4(q), 4(r), 4(sthe Exchange Act (applicable to securities with an average daily trading volume of $1,000,000 that are issued by an issuer whose common equity securities have a public float value of at least $150,000,000) and 4(w) are not satisfied with respect to the delivery Company or the Shares, it shall promptly notify the other party and sales of certificatesShares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) The gross sales price of any Shares sold by the Manager as sales agent hereunder shall be the market price for shares of the Company’s Common Stock sold by the Manager under this Agreement on the Exchange at the time of such sale. Subject to Section 2(g) of this Agreement, opinions, or comfort letters the compensation payable to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares with respect to which the Manager acts as sales agent hereunder shall be at a mutually agreed rate, not equal to exceed 2.01.50% of the gross sales price of any the Shares for amounts of Shares sold by the Manager pursuant to this Agreement; provided that unless (i) the Manager terminates this Agreement pursuant to Section 10(b) of this Agreement and (ii) at such time of termination, the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement and the Additional Equity Distribution Agreement, is less than the aggregate offering price or number, as the case may be, of Shares set forth in the preamble paragraph of this Agreement, the total compensation payable to the Manager under this Section 3(a)2(f) in respect of the total Shares sold by the Manager as sales agent pursuant to this Agreement shall not be less than the total compensation payable to the Joint Manager under Section 2(f) of the Additional Equity Distribution Agreement in respect of the total Shares sold by the Joint Manager as sales agent pursuant to the Additional Equity Distribution Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Manager shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vg) Notwithstanding Section 2(f) of this Agreement, in no event shall the total compensation payable to the Manager and the Joint Manager pursuant to Section 2(f) of this Agreement and Section 2(f) of the Additional Equity Distribution Agreement, be greater than 1.50% of the aggregate offering price or number, as the case may be, of Shares set forth in the preamble paragraph of this Agreement.
(h) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Exchange each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the gross sales prices of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vii) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Manager (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the its designee’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager any commission commission, discount or other compensation to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viij) At each Time of Sale, Settlement Date If the Company wishes to issue and Representation Date sell the Shares to the Manager as principal pursuant to this Agreement (each, as defined in Section 2(ba “Placement”), Section 3(a)(viit will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Manager and Section 4(o) hereof, respectively), the Company will enter into a terms agreement setting forth the terms of such Placement. The terms set forth in a terms agreement will not be binding on the Company or the Manager unless and until the Company and the Operating Partnership Manager have each executed such terms agreement accepting all of the terms of such terms agreement. In the event of a conflict between the terms of this Agreement and the terms of a terms agreement, the terms of such terms agreement will control. The Manager shall be deemed under no obligation to have affirmed each representation and warranty contained in purchase Shares on a principal basis pursuant to this Agreement. Any obligation of , except as otherwise specifically agreed by the Manager to use its commercially reasonable efforts to sell Shares on behalf of and the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofa terms agreement.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Zions Bancorporation /Ut/), Equity Distribution Agreement (Zions Bancorporation /Ut/)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the ManagerAgents, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagents, and the Manager agrees Agents agree to use its their commercially reasonable efforts to sell, as sales agent agents for the Company, the Shares on the following terms.
(i) i. The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager an Agent on any day that (A) is a trading day for the NYSE MKT (other than a day on which the NYSE MKT is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager such Agent by telephone (confirmed promptly by electronic mail) to make such sales (each offering of Shares pursuant to a set of instructions, a “Continuous Offering”) and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company Company’s instructions will designate in designate, at a notice delivered by electronic mail minimum, the day or days on which Shares are to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) be sold, the maximum number amount of the Shares to be sold by the Manager such Agent daily as agreed to by the Manager such Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be less (ii) any amounts already issued and sold under pursuant to this Agreement) and the minimum price per Share at which such Shares may be sold. The Company’s instructions shall be effective upon acceptance by telephone (confirmed promptly by electronic mail) of the terms contained therein by an Agent (which either Agent may decline to do for any reason, in its sole discretion) until (i) the entire amount of the Shares designated in such instructions have been sold, (ii) the Company terminates the instructions by telephone (confirmed promptly by electronic mail) at any time in its sole discretion, (iii) the Company issues subsequent instructions that supersede those in earlier instructions, (iv) the Company or both Agents have suspended the sale of the Shares in accordance with Section 3(a)(iii) below, or (v) this Agreement or, together with all sales has been terminated under the provisions of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the ManagerSection 8. Subject to the terms and conditions hereof, such Agent shall use its commercially reasonable efforts to sell on a particular day, consistent with its normal trading practices, all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a) shall be the market price for shares of the Company’s Common Stock sold by the Agent under this Section 3(a) on the NYSE MKT at the time of such sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share designated by the Company ay which such Shares may be sold).
ii. The Company acknowledges and agrees that (A) there can be no assurance that either Agent will be successful in selling the Shares, (B) no Agent will incur liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by such Agent to use their commercially reasonable efforts consistent with their normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) no Agent shall be under any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Agents and the Company.
iii. The Company shall not authorize the issuance and sale of, and the Agents shall not be obligated to use their commercially reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Agents in writing. The Company or either Agent may, upon notice to the other parties hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for any reason and at any time; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice; provided, further, that any such Suspension by an Agent shall not affect the Company’s and the other Agent’s respective obligations hereunder.
iv. The Agents hereby covenant and agree not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), the Manager may sell Shares other than (A) by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under of the Act (an “At Act, including, without limitation, sales of the Market Offering”)Shares by means of ordinary brokers’ transactions between members of the NYSE MKT that qualify for delivery of a Prospectus to the NYSE MKT in accordance with Rule 153, including without limitation sales made directly on of the NYSE, Shares on any other existing trading market for the Common Stock and sales of the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings maker and (B) such other sales of the Shares, including sales of the Shares in privately negotiated transactions, on behalf of the Company in its their capacity as agent agents of the Company as shall be mutually agreed upon by the Company and the ManagerAgents pursuant to a Terms Agreement.
(iv) v. The compensation to the Manager, as an agent of the Company, Agents for sales of the Shares with respect to which the Agents act as sales agents under this Agreement shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) by the Agents and payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when the Agents act as principals, in which case the Company may sell Shares to the Agents as principals at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed on the Agents by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager vi. The Agents shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company promptly following the close of trading on the NYSE MKT each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager Agents with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the Agents to the Company, with payment to be made by the Company promptly after its receipt thereof.
(vi) vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE third Business Day following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through an Agent for settlement on such date shall be issued and delivered by the Company to such Agent against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the ManagerAgent’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager Agents harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager Agents any commission to which it they would otherwise be entitled absent such default. The Authorized If an Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, such Agent will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)such Agent.
(vii) viii. At each Applicable Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)Date, the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager Agents to use its their commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) Notwithstanding anything If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify the Agents of the proposed terms of such Placement. If the Agents, acting as principals, wish to accept such proposed terms (which they may decline to do for any reason in their sole discretion) or, following discussions with the Company wish to accept amended terms, the Agents and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Agents unless and until the Company and the Agents have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to the contrary hereinAgents shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager Agents. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Agents. The commitment of the Agents to purchase the Shares pursuant to any Terms Agreement shall not sell (1) Series A Preferred be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares at a price higher than to be purchased by the Series A Maximum Price. For the purposes hereofAgents pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Agents in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Series A Maximum Price” Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall mean: also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Agents.
(ad) through October 4, 2020, Under no circumstances shall the product aggregate amount of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) $25.00 plus the Maximum Amount, (ii) the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Agents in writing.
(e) If the Company or the Agents have reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any accrued and unpaid dividends per share to, but excludingTerms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale of, any Shares and, by notice to the Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for the offer or sale of any Shares, and the Agents shall not be obligated to offer or sell any Shares, (i) during any period in which the Company is, or could be deemed to be, in possession of material non-public information or (ii) except as provided in Section 3(h) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of sale operations (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement.
(g) If the Company wishes to offer, sell or deliver Shares pursuant to this Agreement at any time during the period from and including an Announcement Date through and including the time that is 24 hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Agents (with a copy to counsel to the Agents) a Current Report on Form 8-K, which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections, similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agents, and obtain the consent of the Agents to the filing thereof (such consent not to be unreasonably withheld), (ii) provide the Agents with the officers’ certificate, accountants’ letter and opinions and letters of counsel called for by Sections 4(k), (l), (m) and (n) hereof, if applicable, respectively, (iii) afford the Agents the opportunity to conduct a due diligence review in accordance with Section 4(p) hereof and (iv) file such Earnings 8-K with the Commission, then the provisions of clause (iii) of Section 3(g) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the Company and the Agents agree that (A) the delivery of any officers’ certificate, accountants’ letter and opinions and letters of counsel pursuant to this Section 3(h) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, accountants’ letters and legal opinions and letters as provided in Section 4 hereof, if applicable, and (B) this Section 3(h) shall in no way affect or limit the operation of the provisions of clauses (i) and (ii) 1.005; and (b) on October 5of Section 3(g), 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salewhich shall have independent application.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Orchid Island Capital, Inc.), Equity Distribution Agreement (Orchid Island Capital, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by Each time that the Company wishes to issue and the Manager on sell any day that Shares hereunder (A) is each, a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company RepresentativesPlacement”), has instructed it will notify the Manager by telephone email notice (confirmed promptly or other method mutually agreed to in writing by electronic mailthe parties) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) containing the maximum parameters in accordance with which it desires such Shares to be sold, which shall at a minimum include the number of Shares to be issued, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus Trading Day and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managermade, a form of which containing such minimum sales parameters necessary is attached hereto as Schedule 1. Subject to the terms and conditions of this Section 3(a)hereof, the Manager may shall use its reasonable efforts to sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for all of the Shares subject to or through a market maker, or directly to any customer or client of Placement Notice in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionstime frame specified therein.
(ii) Notwithstanding the foregoing, the Company, through The Placement Notice shall originate from any of the Authorized individuals from the Company Representativesset forth on Schedule 2 (with a copy to each of the other individuals from the Company listed on such schedule), may instruct and shall be addressed to each of the individuals from the Manager set forth on Schedule 2, as such Schedule 2 may be amended from time to time. The Placement Notice shall be effective upon receipt by telephone the Manager unless and until (confirmed promptly i) the entire amount of the Shares to be sold under the Placement Notice have been sold, (ii) the Company suspends or terminates the Placement Notice for any reason in its sole discretion, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice or (iv) this Agreement has been terminated under the provisions of Section 8 hereof. It is expressly acknowledged and agreed that neither the Company nor the Manager will have any obligation whatsoever with respect to a Placement or any Shares unless and until the Company delivers a Placement Notice to the Manager, and then only upon the terms specified therein and herein.
(iii) The Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by electronic mail) not the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares if such sales canas required under this Agreement, and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.
(iv) The Company shall not authorize the issuance and sale of, and the Manager shall not be effected obligated to use its reasonable efforts to sell, any Share at or above a price lower than the minimum price therefor designated from time to time by the Company Board, or a duly authorized committee thereof, and notified to the Manager in any such instructionwriting in the Placement Notice. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiv) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At ordinary brokers’ transactions between members of the Nasdaq Stock Market Offerings LLC that qualify for delivery of a Prospectus to the Nasdaq Stock Market LLC in accordance with Rule 153 (such transactions are hereinafter referred to as “Continuous Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the ManagerManager pursuant to a Terms Agreement.
(ivvi) The compensation to the Manager, as an agent of the Company, Manager for sales of the Shares with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, not up to exceed 2.03.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) and payable as described in the succeeding subsection (viii) below. The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”), shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvii) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE Nasdaq Global Select Market each day on which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the Manager to the Company, with payment to be made by the Company promptly after its receipt thereof.
(viviii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized If the Manager breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)Manager.
(viiix) At each Applicable Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi4(k) and Section 4(o) hereof, respectivelyof this Agreement), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) If the Company wishes to issue and sell the Shares pursuant to this Agreement to the Manager as principal, it will propose the terms of such sale to the Manager. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until each of the Company and the Manager has executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to the Manager as principal shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(d) Under no circumstances shall the number and aggregate gross sales price of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (ii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing in the Placement Notice.
(e) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding anything to any other provision of this Agreement the contrary hereinCompany shall not request the sale of any Shares that would be sold, and the Manager shall not sell (1) Series A Preferred Shares at a price higher than be obligated to sell, during any period in which the Series A Maximum Price. For the purposes hereofCompany is, the “Series A Maximum Price” shall mean: (a) through October 4or would reasonably be deemed to be, 2020, the product in possession of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salematerial non-public information.
Appears in 2 contracts
Samples: Sales Agreement (Apellis Pharmaceuticals, Inc.), Open Market Sale Agreement (Apellis Pharmaceuticals, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares on the following termsShares.
(ib) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE Nasdaq Global Select Market (the “Exchange”) is scheduled to close prior to its regular weekday closing time)) (each, (Ba “Trading Day”) the Company, through any of the individuals listed as authorized representatives of that the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager to make such sales as sales agent. On any Trading Day, the Company may instruct the Manager by telephone (confirmed promptly by electronic mailtelecopy or email, which confirmation will be promptly acknowledged by the Manager) as to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager on such day (in any event not in excess of the amount number available for issuance under the Prospectus and the currently effective Registration Statement Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Manager shall use its reasonable efforts to sell all of the Shares so designated by the Company.
(c) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in an amount a number in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company Company’s board of directors or a duly authorized committee thereof, and mutually agreed by the Manager. Subject notified to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionwriting. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailtelecopy or email, which confirmation will be promptly acknowledged by the Manager), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice notice.
(d) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in the preamble paragraph of this Agreement or (ii) available for issuance under the Prospectus and provided, further, the then currently effective Registration Statement.
(e) If either party has reason to believe that there shall be no obligations the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under Sections 4(o), 4(p), 4(q), 4(r), 4(sthe Exchange Act (applicable to securities with an average daily trading volume of $1,000,000 that are issued by an issuer whose common equity securities have a public float value of at least $150,000,000) and 4(w) are not satisfied with respect to the delivery Company or the Shares, it shall promptly notify the other party and sales of certificates, opinions, Shares under this Agreement shall be suspended until that or comfort letters other exemptive provisions have been satisfied in the judgment of each party.
(f) The gross sales price of any Shares sold by the Manager as sales agent hereunder shall be the market price for shares of the Company’s Common Stock sold by the Manager under this Agreement on the Exchange at the time of such sale. The compensation payable to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares with respect to which the Manager acts as sales agent hereunder shall be at a mutually agreed rate, not equal to exceed 2.0% of the gross sales price of any the Shares for amounts of Shares sold pursuant to this Section 3(a)Agreement up to the first $100,000,000 and 1.50% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement in excess of such $100,000,000. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Manager shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vg) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Exchange each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the gross sales prices of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vih) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Manager (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the its designee’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager any commission commission, discount or other compensation to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viii) At each Time of Sale, Settlement Date If the Company wishes to issue and Representation Date sell the Shares to the Manager as principal pursuant to this Agreement (each, as defined in Section 2(ba “Placement”), Section 3(a)(viit will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Manager and Section 4(o) hereof, respectively), the Company will enter into a terms agreement setting forth the terms of such Placement. The terms set forth in a terms agreement will not be binding on the Company or the Manager unless and until the Company and the Operating Partnership Manager have each executed such terms agreement accepting all of the terms of such terms agreement. In the event of a conflict between the terms of this Agreement and the terms of a terms agreement, the terms of such terms agreement will control. The Manager shall be deemed under no obligation to have affirmed each representation and warranty contained in purchase Shares on a principal basis pursuant to this Agreement. Any obligation of , except as otherwise specifically agreed by the Manager to use its commercially reasonable efforts to sell Shares on behalf of and the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofa terms agreement.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Zions Bancorporation /Ut/), Equity Distribution Agreement (Zions Bancorporation /Ut/)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, Agent acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares. The Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the following terms.
Company other than (iA) The by means of ordinary brokers’ transactions that qualify for delivery of a Prospectus to Nasdaq in accordance with Rule 153 under the 1933 Act (such transactions are hereinafter referred to as “At the Market Offerings”) and (B) such other sales of the Shares are to be sold on a daily basis or otherwise behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager Agent. The Agent covenants and agrees that it shall not engage in a sale of Shares on any day the Company’s behalf that (Awould constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act without the Company’s prior written consent. Subject to the previous sentence, the Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is a trading day for not an At the NYSE (other than a day on which Market Offering and the NYSE is scheduled Company consents to close prior such sale, the Company will provide to its regular weekday closing time)the Agent, (B) at the Agent’s request and upon reasonable advance notice to the Company, through any on or prior to the Settlement Date (as defined below) for such transaction, the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 hereof, each dated the individuals listed Settlement Date, and such other documents and information as authorized representatives of the Agent shall reasonably request. Solely with respect to such sales that would constitute a “block” or a “distribution,” the Agent shall use commercially reasonable efforts to assist the Company on Schedule B hereto in obtaining performance of its obligations by each purchaser whose offer to purchase Shares has been solicited by the Agent and accepted by the Company. Each time that the Company wishes to issue and sell Shares hereunder (the each, a “Authorized Company RepresentativesPlacement”), has instructed it will notify the Manager Agent by telephone email notice (confirmed promptly or other method mutually agreed to in writing by electronic mailthe parties) containing the parameters in accordance with which it desires Shares to make sales be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C any minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Schedule I. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule II (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Agent set forth on Schedule II, as such Schedule II may be amended from time to time. If the Agent wishes to accept such proposed terms included in the Placement Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same Business Day on which such Placement Notice is delivered to the Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Agent set forth on Schedule II) accepting such terms (the “Agent Acceptance”) or setting forth the terms that the Agent is willing to accept. Where the terms provided in the Placement Notice are proposed to be modified as provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Agent until the Company delivers to the Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the “Acceptance”), which email or other communication shall be addressed to all of the individuals from the Company and the Agent set forth on Schedule II and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Agent, on the same Business Day. The Placement Notice shall be effective upon receipt by the Company of the Agent Acceptance or, if modified as provided above, upon receipt by the Agent of the Company Acceptance, as the case may be, unless and until (i) the maximum number entire amount of the Shares to be sold covered by the Manager daily Acceptance have been sold, (ii) in accordance with the notice requirements set forth in Section 4(c), the Company suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) the Agreement has been terminated under the provisions of Section 9. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement unless and until the Company delivers a Placement Notice to the Agent and there occurs with respect thereto either (i) an Agent Acceptance or (ii) a Company Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the relevant Acceptance and herein. In the event of a conflict between the terms of this Agreement and the terms of an Acceptance, the terms of the Acceptance will control. Subject to the terms and conditions hereof, upon the existence of an Acceptance, the Agent shall use its commercially reasonable efforts to sell as agreed sales agent Shares designated in the Acceptance up to the amount specified, and otherwise in accordance with the terms of such Acceptance. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling Shares and (B) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
(b) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Agent as sales agent shall not be permitted to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in any event not a number in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makerBoard, or directly to any customer or client of a duly authorized committee thereof, and as set forth in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionapplicable Acceptance. In addition, the Company or the Manager Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering telecopy or email to all of the individuals of the other party set forth on Schedule II, which confirmation will be promptly acknowledged by the receiving party) suspend or refuse to undertake any sale of Shares designated in such Acceptance for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice. Each of the parties hereto agrees that no such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) effective against the other unless it originates from an individual named on Schedule II and 4(w) with respect is made to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination individuals of the Suspension Periodother party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time.
(iiic) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be a maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. In lieu of the Company paying all compensation payable to the Agent for the sale of the Shares pursuant to this Agreement, the Adviser reserves the right to pay any portion of such compensation in its sole discretion. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vd) If acting as sales agent hereunder, the Manager The Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Nasdaq each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales. For the avoidance of doubt, such written confirmation will be provided to the Company no later than the opening of trading on the immediately following trading day on Nasdaq.
(vie) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in Section 1 of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement, or (iii) authorized from time to time to be issued and sold under this Agreement and the Sales Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s Board, or a duly authorized committee thereof, and notified to the Agent in writing as set forth in the applicable Placement Notice. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Agent shall calculate and provide in writing to the Company, on a monthly basis, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(f) Settlement for sales of Shares pursuant to this Section 3(a) 4 and made in accordance with the terms of the applicable Acceptance will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day for Nasdaq (other than a day on the NYSE which Nasdaq is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent, and in each case, in accordance with applicable rules and regulations (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the sale of Agent for settlement on such Shares date shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon against payments by the parties hereto, which Agent of the Net Proceeds from the sale of such Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable formsame day funds delivered to an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement DateDate pursuant to this Agreement, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viig) At each Time of SaleApplicable Time, each Settlement Date and each Representation Date (each, as such term is defined in Section 2(b), Section 3(a)(vi6(n) and Section 4(o) hereof, respectivelyherein), the Company Company, the Adviser and the Operating Partnership Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any The obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof4 of this Agreement.
(viiih) Notwithstanding anything The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Common Stock pursuant to this Agreement and the contrary hereinSales Agreement shall only be effected by or through only the Agent or the Other Agent, as applicable, on any single given day as determined by the Manager Company, but in no event by more than one of them, and the Company shall not in no event request that more than one of Agent or the Other Agent sell (1) Series A Preferred Shares at a price higher than shares of Common Stock on the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of same day.
(i) $25.00 plus Except as may be mutually agreed by the Company and the Agent, the Company and the Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any accrued Shares that would be sold, and unpaid dividends per share tothe Agent shall not be obligated to sell, but excludingduring: the period that commences on the fifth (5th) business day prior to the Company’s filing of its quarterly report on Form 10-Q or annual report on Form 10-K, as applicable, and ending on the respective date on which the Company files its quarterly report on Form 10-Q (the “10-Q Filing”) or its annual report on Form 10-K (the “10-K Filing”) (each of a 10-Q Filing and/or a 10-K Filing shall also be referred to herein as a “Quarterly Filing”). To the extent the Company releases its earnings for its most recent quarterly period or fiscal year, as applicable (an “Earnings Release”) before it files with the Commission its quarterly report on Form 10-Q for such quarterly period or annual report on Form 10-K for such fiscal year, as applicable, then the Agent and the Company agree that no sales of Shares shall take place for the period beginning on the date of sale the Earnings Release and (ii) 1.005; and (b) ending on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salethe applicable Quarterly Filing. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Agent, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is in possession of material non-public information.
Appears in 2 contracts
Samples: Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but and subject to the terms and conditions herein set forth, the Company agrees to issue and sell through or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold by the Manager on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE Nasdaq (other than a day on which the NYSE Nasdaq is scheduled to close prior to its regular weekday closing time) (each, a “Trading Day”), for which (BA) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto hereto, as such Schedule B may be amended from time to time (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mailmail containing a notice substantially in the form attached hereto as Exhibit 3(a)(i), with a copy to each of the other Authorized Company Representatives at such time) to make such sales of Shares and (CB) the Company has satisfied its obligations under Section Sections 4, 5 and 6 hereof. The On or before a Trading Day that the Company wishes to sell the Shares, the Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”Exhibit 3(a)(i) the maximum number amount of the Shares to be sold by the Manager daily or over a specific trading period as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount amount, together with all sales of the Shares under this Agreement, in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), or below any minimum price below which sales of the Shares may not be effected effected) and any other limitations specified by the Company and mutually agreed by the Manager. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or other security holders of the Company or the Company Parties or to a trustee or other person acquiring the Shares for the accounts of such persons in which the Manger is acting for the Company in a capacity other than as Manager under this Agreement. Subject to the terms and conditions of this Section 3(a), the Manager may sell the Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”Offering (as defined below), including including, without limitation limitation, sales made directly on the NYSEby means of ordinary brokers’ transactions, on any other existing trading market for the Shares to or through a market makermaker at market prices prevailing at the time of sale, at prices related to prevailing market prices or directly at negotiated prices (such transactions are hereinafter referred to as “At the Market Offerings”). Subject to the terms and conditions of this Section 3(a) and the other terms and conditions specified herein (including, without limitation, the accuracy of the representations and warranties of the Company Parties and the performance by the Company of its covenants and other obligations, contained herein and the satisfaction of the additional conditions specified in Section 6 hereof), the Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Manager shall have no obligation to offer or sell any customer Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation, in the event that an offer or client sale of the Shares on behalf of the Company may, in the reasonable judgment of the Manager. The , constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act, or the Manager reasonably believes that it may also sell Shares be deemed to be an “underwriter” under the Act in a transaction that is other than by any other method permitted by law, including but not limited means of ordinary brokers’ transactions between members of Nasdaq that qualify for delivery of a Prospectus to Nasdaq in privately negotiated transactionsaccordance with Rule 153 under the Act.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o4(m), 4(n), 4(p), 4(q), 4(r), 4(s) and 4(w4(q) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of the Shares shall be at a mutually agreed rate, not to exceed 2.03.5% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Nasdaq each day on in which the Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Nasdaq following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, in addition to and in no way limiting the rights and obligations set forth in Section 7(a) hereof, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC DTC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)Date, the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiib) Notwithstanding anything If the Company wishes to issue and sell the Shares other than as set forth in Section 3(a) hereof, it will notify the Manager of the proposed terms of such issuance and sale (each, a “Placement”). If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Company and the Manager will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(c) Under no circumstances shall the aggregate gross sales proceeds of the Shares sold pursuant to this Agreement exceed the lesser of (A) the amount set forth in Section 1 hereof and (B) the amount available for offer and sale under the Registration Statement, nor shall the aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized to be issued and sold from time to time under this Agreement by the board of directors of the Company, or a duly authorized committee thereof, and notified to the contrary hereinManager in writing. The Manager shall have no responsibility for maintaining records with respect to Shares available for sale under the Registration Statement or for determining the aggregate gross sales price, number or minimum price of Shares duly authorized by the Company.
(d) Each sale of the Shares through or to the Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement. The Manager’s commitment, if any, to purchase Shares from the Company as principal shall be deemed to have been made on the basis of the accuracy of the representations and warranties of the Company, and performance by the Company of its covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth. At the time of each Terms Agreement, the Manager shall specify the requirements, if any, for the officers’ certificates, legal opinions and comfort letters pursuant to Sections 4(m), 4(n), 4(p) and 4(q) hereof.
(e) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Manager, sales effected pursuant to this Agreement may not sell (1) Series A Preferred Shares at a price higher than be requested by the Series A Maximum Price. For Company and need not be made by the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of Manager (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, during the 14 calendar days prior to the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of sale and operations (each, an “Earnings Announcement”), (ii) 1.005; at any time from and including an Announcement Date through and including the later to occur of (A) the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement, and (bB) the applicable Bring-Down Delivery Date of the Company referenced in Section 4(q) below, or (iii) during any other period in which the Company is, or could be deemed to be, in possession of material non-public information.
(f) The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling the Shares, (ii) the Manager will not incur liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (iii) the Manager shall not be under any obligation to purchase Shares on October 5, 2020 a principal basis pursuant to this Agreement except as otherwise specifically agreed by the Manager and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleCompany pursuant to a Terms Agreement.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Edesa Biotech, Inc.), Equity Distribution Agreement (Edesa Biotech, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the ManagerManager (each a “Placement”), acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), Nasdaq (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Manager shall use its reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Stock sold by the Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on Nasdaq at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.
(iii) The Company shall not authorize the issuance and sale of, through any of the Authorized Company Representatives, may instruct and the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales canshall not be effected obligated to use its reasonable efforts to sell, any Share at or above a price lower than the minimum price therefor designated from time to time by the Company Board, or a duly authorized committee thereof, and notified to the Manager in any such instructionwriting. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiiv) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At ordinary brokers’ transactions between members of the NASDAQ Stock Market Offerings LLC that qualify for delivery of a Prospectus to the NASDAQ Stock Market LLC in accordance with Rule 153 (such transactions are hereinafter referred to as “Continuous Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the ManagerManager pursuant to a Terms Agreement.
(ivv) The compensation to the Manager, as an agent of the Company, Manager for sales of the Shares with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, not up to exceed 2.03.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) and payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”), shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE Nasdaq each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the Manager to the Company, with payment to be made by the Company promptly after its receipt thereof.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized If the Manager breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)Manager.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement, it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(d) Under no circumstances shall the number and aggregate amount of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) the aggregate amount set forth in Section 1, (ii) the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing.
(e) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding anything to any other provision of this Agreement the contrary hereinCompany shall not request the sale of any Shares that would be sold, and the Manager shall not sell (1) Series A Preferred Shares at a price higher than be obligated to sell, during any period in which the Series A Maximum Price. For the purposes hereofCompany is, the “Series A Maximum Price” shall mean: (a) through October 4or would reasonably be deemed to be, 2020, the product in possession of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salematerial non-public information.
Appears in 2 contracts
Samples: Equity Distribution Agreement, Equity Distribution Agreement (Arena Pharmaceuticals Inc)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell exclusively through or to the Manager, Agent acting as sales agent and/or principal, or directly to the Agent acting as and when it provides instructions, in its discretion, for the sale of the Sharesprincipal from time to time, and the Manager Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares. Sales of the Shares, if any, through the Agent acting as sales agent or directly to the Agent acting as principal may be made in negotiated transactions or transactions that are deemed to be “at the market offerings” as defined in Rule 415 of the 1933 Act. Anything to the contrary notwithstanding in this Agreement, without the Company’s prior written consent (which may be included explicit authorization in a Terms Agreement), the Agent may not place Shares on by any method other than those deemed to be an “at the following termsmarket offering” as defined in Rule 415 of the 1933 Act. Nothing contained herein restricts, nor may be deemed to restrict, the Company from undertaking another offering of its securities pursuant to a separate registration under the 1933 Act (or any exemption from such registration), or another offering under the Registration Statement, provided the Company complies with Section 3(p).
(ib) The Subject to the applicable Terms Agreement or instructions to sell shares delivered pursuant to this Section 2(b), the Shares to be sold pursuant to this Agreement are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE Nasdaq is scheduled to close prior to its regular weekday closing time), (Beach, a “Trading Day”) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) that the Company has satisfied its obligations under Section 6 hereofof this Agreement and that the Company has instructed the Agent to make such sales. The For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Company will designate or its Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which JonesTrading is acting for the Company in a notice delivered capacity other than as Agent under this Agreement. On any Trading Day, the Company may instruct the Agent by electronic mail telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged by the Agent) as to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum aggregate dollar value or number of Shares to be sold by the Manager daily as agreed to by the Manager Agent on such day (in any event not in excess of the amount number available for issuance under the Prospectus and the currently effective Registration Statement Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Agent shall use its commercially reasonable efforts to sell as sales agent all of the Shares so designated by the Company and in the manner and on the terms so designated in writing by the Company. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling the Shares, (B) the Agent will incur no liability or obligation to the Company or any other person or entity if they do not sell Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement, and (C) the Agent shall be under no obligation to purchase Shares on a principal basis except as otherwise specifically agreed by each of the Agent and the Company pursuant to a Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in an amount a number in excess of the amount number or maximum aggregate dollar value of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company Company’s board of directors, or a duly authorized committee thereof, and mutually agreed by the Manager. Subject notified to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined Agent in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionwriting. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail)Agent, suspend the offering of the Shares or the Agent may, upon notice to the Company, suspend the offering of the Shares with respect to which the Agent is acting as sales agent for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Any notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect given pursuant to the delivery of certificatespreceding sentence may be given by telephone (confirmed promptly by telecopy or email, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodwhich confirmation will be promptly acknowledged).
(iiid) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on the Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be equal to up to 3.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. The Company may sell Shares to the Agent, acting as principal, at a price agreed upon with the Agent at the relevant Applicable Time and pursuant to a separate Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(ve) If acting as a sales agent hereunder, the Manager Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Nasdaq, each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager such Agent with respect to such sales.
(vif) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement and any Terms Agreement exceed the aggregate offering price or number, as the case may be, of shares of Common Stock (i) set forth in the preamble paragraph of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement, (iii) authorized from time to time to be issued and sold under this Agreement or any Terms Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing or (iv) authorized but unissued pursuant to the Company’s certificate of incorporation. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing.
(g) Settlement for sales of Shares pursuant to this Section 3(a) 2 will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company to the Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account at The Depository Trust Company against payments by the Agent of the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds delivered to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against shall, in addition to any lossindemnification obligation pursuant to Section 7, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viih) At each Time Notwithstanding any other provision of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)this Agreement, the Company and the Operating Partnership Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is, or would reasonably be deemed to have affirmed each representation and warranty contained be, in this Agreement. possession of material non-public information.
(i) Any obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 2 contracts
Samples: Capital on Demand Sales Agreement (aTYR PHARMA INC), Capital on Demand Sales Agreement (aTYR PHARMA INC)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)NYSE, (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager (daily or otherwise) as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Manager shall use its reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Shares sold by the Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on the NYSE at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.
(iii) The Company shall not authorize the issuance and sale of, through any of the Authorized Company Representatives, may instruct and the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales canshall not be effected obligated to use its reasonable efforts to sell, any Share at or above a price lower than the minimum price therefor designated from time to time by the Company Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Manager in any such instructionwriting. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified any reason and at any time, and the obligations of the Company contained in Sections 4(k), 4(l), 4(m), 4(n), 4(p) and 4(q) of this Agreement shall be deferred for any period that the Company has suspended the offering of Shares pursuant to this Section 3(a)(iii) (each, a “Suspension Period”)) and shall recommence upon the termination of such suspension; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiiv) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings ordinary brokers’ transactions and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company or as principal as shall be mutually agreed upon by the Company and the ManagerManager in writing.
(ivv) The compensation to the Manager, as an agent of the Company, Manager for sales of the Shares with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, not to exceed 2.02.00% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, proceeds shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means in return for payments in same day funds delivered to an account in favor of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany maintained at Key Bank National Association. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company and wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. Except as expressly provided in this Agreement, the sale by the Company of any securities other than the Shares shall not be subject to the terms of this Agreement.
(c) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(d) Under no circumstances shall the gross sales price of the Shares sold pursuant to this Agreement, any Terms Agreement, the Alternative Equity Distribution Agreement and any Alternative Terms Agreement exceed (i) the aggregate gross sales price set forth in Section 1 or (ii) the number and aggregate amount or aggregate gross sales price of the Shares authorized from time to time to be issued and sold under this Agreement, any Terms Agreement, the Alternative Equity Distribution Agreement or any Alternative Terms Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing.
(e) If any of the parties has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other parties and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through only one of the Manager or the Alternative Manager on any single given day, but in no event by both, and the Company shall in no event request that the Manager and the Alternative Manager sell Shares on the same day.
(g) Notwithstanding anything to any other provision of this Agreement, the contrary hereinCompany agrees that no sales of Shares shall take place, and the Company shall not request the sale of any Shares, and the Manager shall not sell be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information; provided that, notwithstanding the provisions of this paragraph (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereofg), the “Series A Maximum Price” Company agrees that no sales of Shares shall mean: take place during the twenty (a20) through October 4, 2020, the product of calendar days prior to an Earnings Release (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleas defined below).
Appears in 2 contracts
Samples: Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the ManagerAgents, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagents, and the Manager agrees Agents agree to use its their commercially reasonable efforts to sell, as sales agent agents for the Company, the Shares on the following terms.
(i) i. The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager an Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager such Agent by telephone (confirmed promptly by electronic mail) to make such sales (each offering of Shares pursuant to a set of instructions, a “Continuous Offering”) and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company Company’s instructions will designate in designate, at a notice delivered by electronic mail minimum, the day or days on which Shares are to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) be sold, the maximum number amount of the Shares to be sold by the Manager such Agent daily as agreed to by the Manager such Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be less (ii) any amounts already issued and sold under pursuant to this Agreement) and the minimum price per Share at which such Shares may be sold. The Company’s instructions shall be effective upon acceptance by telephone (confirmed promptly by electronic mail) of the terms contained therein by an Agent (which either Agent may decline to do for any reason, in its sole discretion) until (i) the entire amount of the Shares designated in such instructions have been sold, (ii) the Company terminates the instructions by telephone (confirmed promptly by electronic mail) at any time in its sole discretion, (iii) the Company issues subsequent instructions that supersede those in earlier instructions, (iv) the Company or both Agents have suspended the sale of the Shares in accordance with Section 3(a)(iii) below, or (v) this Agreement or, together with all sales has been terminated under the provisions of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the ManagerSection 8. Subject to the terms and conditions hereof, such Agent shall use its commercially reasonable efforts to sell on a particular day, consistent with its normal trading practices, all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a) shall be the market price for shares of the Company’s Common Stock sold by an Agent under this Section 3(a) on the NYSE at the time of such sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share designated by the Company at which such Shares may be sold).
ii. The Company acknowledges and agrees that (A) there can be no assurance that either Agent will be successful in selling the Shares, (B) no Agent will incur any liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by such Agent to use their commercially reasonable efforts consistent with their normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) no Agent shall be under any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Agents and the Company.
iii. The Company shall not authorize the issuance and sale of, and the Agents shall not be obligated to use their commercially reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Agents in writing. The Company or either Agent may, upon notice to the other parties hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for any reason and at any time; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice; provided, further, that any such Suspension by an Agent shall not affect the Company’s and the other Agent’s respective obligations hereunder.
iv. The Agents hereby covenant and agree not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), the Manager may sell Shares other than (A) by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under of the Act (an “At Act, including, without limitation, sales of the Market Offering”)Shares by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153, including without limitation sales made directly on of the NYSE, Shares on any other existing trading market for the Common Stock and sales of the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings maker and (B) such other sales of the Shares, including sales of the Shares in privately negotiated transactions, on behalf of the Company in its their capacity as agent agents of the Company as shall be mutually agreed upon by the Company and the ManagerAgents pursuant to a Terms Agreement.
(iv) v. The compensation to the Manager, as an agent of the Company, Agents for sales of the Shares with respect to which the Agents act as sales agents under this Agreement shall be at a mutually agreed rate, not up to exceed 2.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) by the Agents and payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when the Agents act as principals, in which case the Company may sell Shares to the Agents as principals at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed on the Agents by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager vi. The Agents shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company promptly following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager Agents with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the Agents to the Company, with payment to be made by the Company promptly after its receipt thereof.
(vi) vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE third Business Day following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through an Agent for settlement on such date shall be issued and delivered by the Company to such Agent against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Managersuch Agent’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager Agents harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager Agents any commission to which it they would otherwise be entitled absent such default. The Authorized If an Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, such Agent will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)such Agent.
(vii) viii. At each Applicable Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)Date, the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager Agents to use its their commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) Notwithstanding anything If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify the Agents of the proposed terms of such Placement. If the Agents, acting as principals, wish to accept such proposed terms (which they may decline to do for any reason in their sole discretion) or, following discussions with the Company wish to accept amended terms, the Agents and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Agents unless and until the Company and the Agents have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to the contrary hereinAgents shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager Agents. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Agents. The commitment of the Agents to purchase the Shares pursuant to any Terms Agreement shall not sell (1) Series A Preferred be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares at a price higher than to be purchased by the Series A Maximum Price. For the purposes hereofAgents pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Agents in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Series A Maximum Price” Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall mean: also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Agents.
(ad) through October 4, 2020, Under no circumstances shall the product aggregate amount of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) $25.00 plus any accrued and unpaid dividends per share to125,000,000, but excluding, the date of sale and (ii) 1.005; the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Agents in writing.
(e) If the Company or the Agents have reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale of, any Shares and, by notice to the Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for the offer or sale of any Shares, and the Agents shall not be obligated to offer or sell any Shares, (i) during any period in which the Company is, or could be deemed to be, in possession of material non-public information or (ii) except as provided in Section 3(g) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement.
(g) If the Company wishes to offer, sell or deliver Shares pursuant to this Agreement at any time during the period from and including an Announcement Date through and including the time that is 24 hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Agents (with a copy to counsel to the Agents) a Current Report on Form 8-K, which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections, similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agents, and obtain the consent of the Agents to the filing thereof (such consent not to be unreasonably withheld), (ii) provide the Agents with the officers’ certificate, accountants’ letter and opinions and letters of counsel called for by Sections 4(k), (l), (m) and (bn) on October 5hereof, 2020 if applicable, respectively, (iii) afford the Agents the opportunity to conduct a due diligence review in accordance with Section 4(p) hereof and thereafter(iv) file such Earnings 8-K with the Commission, $25.00 plus any accrued then the provisions of clause (ii) of Section 3(f) shall not be applicable for the period from and unpaid dividends per share toafter the time at which the foregoing conditions shall have been satisfied (or, but excludingif later, the date time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of salethe relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the Company and the Agents agree that (A) the delivery of any officers’ certificate, accountants’ letter and opinions and letters of counsel pursuant to this Section 3(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, accountants’ letters and legal opinions and letters as provided in Section 4 hereof, if applicable, and (B) this Section 3(g) shall in no way affect or limit the operation of the provisions of clause (i) of Section 3(f), which shall have independent application.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Orchid Island Capital, Inc.), Equity Distribution Agreement (Orchid Island Capital, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the ManagerAgents, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagents, and the Manager agrees Agents agree to use its their commercially reasonable efforts to sell, as sales agent agents for the Company, the Shares on the following terms.
(i) i. The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager an Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager such Agent by telephone (confirmed promptly by electronic mail) to make such sales (each offering of Shares pursuant to a set of instructions, a “Continuous Offering”) and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company Company’s instructions will designate in designate, at a notice delivered by electronic mail minimum, the day or days on which Shares are to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) be sold, the maximum number amount of the Shares to be sold by the Manager such Agent daily as agreed to by the Manager such Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be less (ii) any amounts already issued and sold under pursuant to this Agreement) and the minimum price per Share at which such Shares may be sold. The Company’s instructions shall be effective upon acceptance by telephone (confirmed promptly by electronic mail) of the terms contained therein by an Agent (which either Agent may decline to do for any reason, in its sole discretion) until (i) the entire amount of the Shares designated in such instructions have been sold, (ii) the Company terminates the instructions by telephone (confirmed promptly by electronic mail) at any time in its sole discretion, (iii) the Company issues subsequent instructions that supersede those in earlier instructions, (iv) the Company or both Agents have suspended the sale of the Shares in accordance with Section 3(a)(iii) below, or (v) this Agreement or, together with all sales has been terminated under the provisions of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the ManagerSection 8. Subject to the terms and conditions hereof, such Agent shall use its commercially reasonable efforts to sell on a particular day, consistent with its normal trading practices, all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a) shall be the market price for shares of the Company’s Common Stock sold by an Agent under this Section 3(a) on the NYSE at the time of such sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share designated by the Company at which such Shares may be sold).
ii. The Company acknowledges and agrees that (A) there can be no assurance that either Agent will be successful in selling the Shares, (B) no Agent will incur any liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by such Agent to use their commercially reasonable efforts consistent with their normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) no Agent shall be under any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Agents and the Company.
iii. The Company shall not authorize the issuance and sale of, and the Agents shall not be obligated to use their commercially reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Agents in writing. The Company or either Agent may, upon notice to the other parties hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for any reason and at any time; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice; provided, further, that any such Suspension by an Agent shall not affect the Company’s and the other Agent’s respective obligations hereunder.
iv. The Agents hereby covenant and agree not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), the Manager may sell Shares other than (A) by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under of the Act (an “At Act, including, without limitation, sales of the Market Offering”)Shares by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153, including without limitation sales made directly on of the NYSE, Shares on any other existing trading market for the Common Stock and sales of the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings maker and (B) such other sales of the Shares, including sales of the Shares in privately negotiated transactions, on behalf of the Company in its their capacity as agent agents of the Company as shall be mutually agreed upon by the Company and the ManagerAgents pursuant to a Terms Agreement.
(iv) v. The compensation to the Manager, as an agent of the Company, Agents for sales of the Shares with respect to which the Agents act as sales agents under this Agreement shall be at a mutually agreed rate, not up to exceed 2.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) by the Agents and payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when the Agents act as principals, in which case the Company may sell Shares to the Agents as principals at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed on the Agents by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager vi. The Agents shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company promptly following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager Agents with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the Agents to the Company, with payment to be made by the Company promptly after its receipt thereof.
(vi) vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE third Business Day following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through an Agent for settlement on such date shall be issued and delivered by the Company to such Agent against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Managersuch Agent’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager Agents harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager Agents any commission to which it they would otherwise be entitled absent such default. The Authorized If an Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, such Agent will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)such Agent.
(vii) viii. At each Applicable Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)Date, the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager Agents to use its their commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) Notwithstanding anything If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify the Agents of the proposed terms of such Placement. If the Agents, acting as principals, wish to accept such proposed terms (which they may decline to do for any reason in their sole discretion) or, following discussions with the Company wish to accept amended terms, the Agents and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Agents unless and until the Company and the Agents have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to the contrary hereinAgents shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager Agents. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Agents. The commitment of the Agents to purchase the Shares pursuant to any Terms Agreement shall not sell (1) Series A Preferred be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares at a price higher than to be purchased by the Series A Maximum Price. For the purposes hereofAgents pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Agents in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Series A Maximum Price” Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall mean: also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Agents.
(ad) through October 4, 2020, Under no circumstances shall the product aggregate amount of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) $25.00 plus any accrued and unpaid dividends per share tothe Maximum Amount, but excluding, the date of sale and (ii) 1.005; the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Agents in writing.
(e) If the Company or the Agents have reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale of, any Shares and, by notice to the Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for the offer or sale of any Shares, and the Agents shall not be obligated to offer or sell any Shares, (i) during any period in which the Company is, or could be deemed to be, in possession of material non-public information or (ii) except as provided in Section 3(g) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement.
(g) If the Company wishes to offer, sell or deliver Shares pursuant to this Agreement at any time during the period from and including an Announcement Date through and including the time that is 24 hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Agents (with a copy to counsel to the Agents) a Current Report on Form 8-K, which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections, similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agents, and obtain the consent of the Agents to the filing thereof (such consent not to be unreasonably withheld), (ii) provide the Agents with the officers’ certificate, accountants’ letter and opinions and letters of counsel called for by Sections 4(k), (l), (m) and (bn) on October 5hereof, 2020 if applicable, respectively, (iii) afford the Agents the opportunity to conduct a due diligence review in accordance with Section 4(p) hereof and thereafter(iv) file such Earnings 8-K with the Commission, $25.00 plus any accrued then the provisions of clause (ii) of Section 3(f) shall not be applicable for the period from and unpaid dividends per share toafter the time at which the foregoing conditions shall have been satisfied (or, but excludingif later, the date time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of salethe relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the Company and the Agents agree that (A) the delivery of any officers’ certificate, accountants’ letter and opinions and letters of counsel pursuant to this Section 3(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, accountants’ letters and legal opinions and letters as provided in Section 4 hereof, if applicable, and (B) this Section 3(g) shall in no way affect or limit the operation of the provisions of clause (i) of Section 3(f), which shall have independent application.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Orchid Island Capital, Inc.), Equity Distribution Agreement (Orchid Island Capital, Inc.)
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principalagent, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum NumberAmount, by the Company’s Board of Directors, or a duly authorized committee thereof, and notified to the Manager by electronic mail substantially in the form attached hereto as Exhibit 3(a)(i)), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”Offering (as defined below), including including, without limitation limitation, sales made directly by means of ordinary brokers’ transactions on the NYSE, on any other existing trading market for the Shares to or through a market makermaker at market prices prevailing at the time of sale, at prices related to prevailing market prices or directly at negotiated prices. Subject to any customer or client the terms and conditions of this Section 3(a), the Manager shall use its commercially reasonable efforts to offer and sell all of the Manager. The Shares designated; provided, however, that the Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation, in the event that an offer or sale of the Shares on behalf of the Company may also sell Shares in the reasonable judgment of the Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes that it may be deemed to be an “underwriter” under the Act in a transaction that is other than by any other method permitted by law, including but not limited means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in privately negotiated transactionsaccordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(n), 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w4(q) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of the Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on in which the Shares are sold pursuant to this Section 3(a) setting forth (i) the number amount of the Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o4(n) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiii) Notwithstanding anything If the Company wishes to issue and sell the Shares other than as set forth in Section 3(a) hereof (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Company and the Manager will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate gross sales proceeds of the Shares sold pursuant to this Agreement exceed the lesser of (A) the amount set forth in Section 1 hereof and (B) the amount available for offer and sale under the currently effective Registration Statement nor shall the aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized to be issued and sold from time to time under this Agreement by the Company’s Board of Directors, or a duly authorized committee thereof, and notified to the contrary hereinManager in writing. Further, under no circumstances shall the aggregate number of Shares sold pursuant to this Agreement and the Alternative Distribution Agreement, including any separate underwriting or similar agreement covering principal transactions described in Section 1 of this Agreement and the Alternative Distribution Agreement, exceed the Maximum Amount.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party, and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares through or to the Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Manager, sales effected pursuant to this Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act (each such date, a “Filing Date”) and ends, for all periods, on the earlier of (i) the date that directors and officers are no longer permitted to effect transactions in securities of the Company pursuant to the Company’s policy on ixxxxxx xxxxxxx as in effect from time to time and (ii) the end of the quarter in which the applicable Filing Date occurs. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Manager, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not sell be obligated to sell, during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(1f) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of The Company acknowledges and agrees that (i) $25.00 plus any accrued and unpaid dividends per share tothere can be no assurance that the Manager will be successful in selling the Shares, but excluding, the date of sale and (ii) 1.005; the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (biii) the Manager shall be under no obligation to purchase Shares on October 5a principal basis pursuant to this Agreement unless a Terms Agreement, 2020 in form and thereaftersubstance mutually satisfactory to the Company and Manager, $25.00 plus shall have been executed by the Company and the Manager.
(g) The Company agrees that any accrued and unpaid dividends per share tooffer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through only one of the Manager or the Alternative Manager on any single given day, but excludingin no event by both, and the date of saleCompany shall in no event request that the Manager and the Alternative Manager sell Shares on the same day.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Education Realty Trust, Inc.), Equity Distribution Agreement (Education Realty Trust, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE New York Stock Exchange (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“NYSE”) and the Nasdaq Global Market (“Nasdaq”), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Manager shall use its reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for the Company’s Common Shares sold by the Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on the NYSE and Nasdaq at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.
(iii) The Company shall not authorize the issuance and sale of, through any of the Authorized Company Representatives, may instruct and the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales canshall not be effected obligated to use its reasonable efforts to sell, any Share at or above a price lower than the minimum price therefor designated from time to time by the Company Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Manager in any such instructionwriting. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiiv) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At ordinary brokers’ transactions between members of the Market Offerings NYSE and Nasdaq that qualify for delivery of a Prospectus to the NYSE and Nasdaq in accordance with Rule 153 (such transactions are hereinafter referred to as “Continuous Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the ManagerManager pursuant to a Terms Agreement.
(ivv) The compensation to the Manager, as an agent of the Company, Manager for sales of the Shares with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) and payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”), shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE and Nasdaq each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the Manager to the Company, with payment to be made by the Company promptly after its receipt thereof.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized If the Manager breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)Manager.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Date, Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Filing Date (as defined in Section 4(o) hereof, respectively4(x)), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(d) Under no circumstances shall the number and aggregate amount of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) the aggregate amount set forth in Section 1, (ii) the number of Common Shares available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing.
(e) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding anything to any other provision of this Agreement, the contrary hereinCompany shall not request the sale of any Shares that would be sold, and the Manager shall not sell be obligated to sell, during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists at the Execution Time, would prohibit the purchases or sales of the Company’s Common Shares by its officers or directors, or during any other period in which the Company is, or could be deemed to be, in possession of material non-public information; provided that, unless otherwise agreed between the Company and the Manager, for purposes of this paragraph (1f) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” such period shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, be deemed to end on the date of sale and (ii) 1.005; and (b) on October 5which the Company’s next subsequent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, 2020 and thereafteras the case may be, $25.00 plus any accrued and unpaid dividends per share to, but excluding, is filed with the date of saleCommission.
Appears in 1 contract
Samples: Equity Distribution Agreement (Associated Estates Realty Corp)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, Agent acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares on the following terms.
(i) Shares. The Shares are to may be offered and sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for in negotiated transactions or in block transactions, in each case, with the NYSE (other than a day on which consent of the NYSE is scheduled to close prior to its regular weekday closing time), Company or (B) by any other method permitted by law deemed to be an “at the Companymarket offering” as defined in Rule 415(a)(4) under the Securities Act, through including sales made directly on Nasdaq or sales made into any other existing trading market of the individuals listed Common Stock (such transactions are hereinafter referred to as authorized representatives “At the Market Offerings”). Nothing in this Agreement shall be deemed to require either party to agree to the method of offer and sale specified in the preceding sentence, and (except as specified in clause (A) above) the method of placement of any Shares by the Agent shall be at the Agent’s discretion. Each time that the Company on Schedule B hereto wishes to issue and sell Shares hereunder (the each, a “Authorized Company RepresentativesPlacement”), has instructed it will notify the Manager Agent by telephone email notice (confirmed promptly or other method mutually agreed to in writing by electronic mailthe parties) containing the parameters in accordance with which it desires Shares to make sales be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C any minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Schedule I. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule II (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Agent set forth on Schedule II, as such Schedule II may be amended from time to time. If the Agent wishes to accept such proposed terms included in the Placement Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same Business Day on which such Placement Notice is delivered to the Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Agent set forth on Schedule II) accepting such terms (the “Agent Acceptance”) or setting forth the terms that the Agent is willing to accept. Where the terms provided in the Placement Notice are proposed to be modified as provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Agent until the Company delivers to the Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the “Acceptance”), which email or other communication shall be addressed to all of the individuals from the Company and the Agent set forth on Schedule II and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Agent, on the same Business Day. The Placement Notice shall be effective upon receipt by the Company of the Agent Acceptance or, if modified as provided above, upon receipt by the Agent of the Company Acceptance, as the case may be, unless and until (i) the maximum number entire amount of the Shares to be sold covered by the Manager daily Acceptance have been sold, (ii) in accordance with the notice requirements set forth in Section 4(c), the Company suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) this Agreement has been terminated under the provisions of Section 9. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement unless and until the Company delivers a Placement Notice to the Agent and there occurs with respect thereto either (i) an Agent Acceptance or (ii) a Company Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the relevant Acceptance and herein. In the event of a conflict between the terms of this Agreement and the terms of an Acceptance, the terms of the Acceptance will control. Subject to the terms and conditions hereof, upon the existence of an Acceptance, the Agent shall use its commercially reasonable efforts to sell as agreed sales agent Shares designated in the Acceptance up to the amount specified, and otherwise in accordance with the terms of such Acceptance. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling Shares and (B) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
(b) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Agent as sales agent shall not be permitted to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in any event not a number in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makerBoard, or directly to any customer or client of a duly authorized committee thereof, and as set forth in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionapplicable Acceptance. In addition, the Company or the Manager Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering telecopy or email to all of the individuals of the other party set forth on Schedule II, which confirmation will be promptly acknowledged by the receiving party) suspend or refuse to undertake any sale of Shares designated in such Acceptance for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice. Each of the parties hereto agrees that no such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) effective against the other unless it originates from an individual named on Schedule II and 4(w) with respect is made to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination individuals of the Suspension Periodother party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time.
(iiic) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be a maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. In lieu of the Company paying all compensation payable to the Agent for the sale of the Shares pursuant to this Agreement, the Adviser reserves the right to pay any portion of such compensation in its sole discretion. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vd) If acting as sales agent hereunder, the Manager The Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Nasdaq each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales. For the avoidance of doubt, such written confirmation will be provided to the Company no later than the opening of trading on the immediately following trading day on Nasdaq.
(vie) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in Section 1 of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement, or (iii) authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s Board, or a duly authorized committee thereof, and notified to the Agent in writing as set forth in the applicable Placement Notice. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Agent shall calculate and provide in writing to the Company, on a monthly basis, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(f) Settlement for sales of Shares pursuant to this Section 3(a) 4 and made in accordance with the terms of the applicable Acceptance will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day for Nasdaq (other than a day on the NYSE which Nasdaq is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent, and in each case, in accordance with the applicable rules and regulations (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the sale of Agent for settlement on such Shares date shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon against payments by the parties hereto, which Agent of the Net Proceeds from the sale of such Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable formsame day funds delivered to an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement DateDate pursuant to this Agreement, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viig) At each Time of SaleApplicable Time, each Settlement Date and each Representation Date (each, as such term is defined in Section 2(b), Section 3(a)(vi6(n) and Section 4(o) hereof, respectivelyherein), the Company Company, the Adviser and the Operating Partnership Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any The obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof4 of this Agreement.
(viiih) Notwithstanding anything Except as may be mutually agreed by the Company and the Agent, the Company and the Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during: the period that commences on the fifth (5th) business day prior to the contrary hereinCompany’s filing of its quarterly report on Form 10-Q or annual report on Form 10-K, as applicable, and ending on the Manager shall not sell date on which the Company files with the Commission its quarterly report on Form 10-Q (the “10-Q Filing”) or its annual report on Form 10-K (the “10-K Filing”), as applicable (each such filing referred to in clause (1) Series A Preferred or (2) shall also be referred to herein as a “Quarterly Filing”). To the extent the Company releases its earnings for its most recent quarterly period or fiscal year, as applicable (an “Earnings Release”) before it files with the Commission its quarterly report on Form 10-Q for such quarterly period or annual report on Form 10-K for such fiscal year, as applicable, then the Agent and the Company agree that no sales of Shares at a price higher than shall take place for the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, period beginning on the date of sale the Earnings Release and (ii) 1.005; and (b) ending on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salethe applicable Quarterly Filing. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Agent, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is in possession of material non-public information.
Appears in 1 contract
Samples: Equity Distribution Agreement (Gladstone Capital Corp)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the Managerseveral Managers, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagents, and the each Manager severally agrees to use its commercially reasonable efforts to sell, as a sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the applicable Manager on any day that (A) is a trading day for the NYSE New York Stock Exchange (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“NYSE”), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the applicable Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof5 of this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the applicable Manager daily as agreed to by the such Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the applicable Manager shall use its reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a)) shall be the market price for shares of the Company’s Common Stock sold by the applicable Manager under this Section 3(a) on the NYSE at the time of sale of such Shares. Other than pursuant to a Terms Agreement with respect to which both Managers are parties, the Company shall not instruct more than one Manager may to offer or sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, shares on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssingle day.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManagers will be successful in selling the Shares, the Company, through (B) no Manager will incur any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not liability or obligation to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or any other person or entity if it does not sell Shares for any reason other than a failure by such Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) no Manager shall be under any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by such Manager and the Company.
(iii) The Company shall not authorize the issuance and sale of, and no Manager shall be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the applicable Manager in writing. The Company or any Manager may, upon notice to the other party parties hereto by telephone (confirmed promptly by electronic mail), suspend or terminate the offering of the Shares by the Company through such Manager for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and providednotice. Notwithstanding anything to the contrary, furtherduring any such period of suspension (which suspension period shall not be deemed to have begun for the purposes of this paragraph (iii) until the first day following the Settlement Date in respect of any sale of Shares pursuant to this Agreement that has not yet been consummated), that there the Company shall not be no obligations under obligated to deliver (or cause to be delivered) any of the documents referred to in Sections 4(l), 4(m), 4(n) or 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect be deemed to affirm any of the delivery of certificates, opinionsrepresentations or warranties contained in this Agreement pursuant to Sections 2 or 4 hereof, or comfort letters be obligated to the Manager during a Suspension Period and that such obligations shall recommence on conduct any due diligence session as referred to in Section 4(p) until the termination of the Suspension Periodsuspension and the recommencement of the offering of the Shares pursuant to this Agreement (which recommencement shall constitute a Representation Date, as defined in Section 4(l)).
(iiiiv) The Each Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At ordinary brokers’ transactions between members of the Market Offerings NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 of the 1933 Act Regulations (such transactions are hereinafter referred to as “Continuous Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Managersuch Manager pursuant to a Terms Agreement.
(ivv) The compensation to the Manager, as an agent of the Company, Managers for sales of the Shares with respect to which a Manager acts as a sales agent under this Agreement shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) and payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when a Manager acts as principal, in which case the Company may sell Shares to the applicable Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”), shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the The applicable Manager shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the such Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the applicable Manager to the Company, with payment to be made by the Company promptly after its receipt thereof.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through a Manager for settlement on such date shall be issued and delivered by the Company to such Manager against payment of the aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the applicable Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the applicable Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the such Manager any commission to which it would otherwise be entitled absent such default. The Authorized If a Manager breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, such Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)such Manager.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Representation Date (each, as defined in Section 2(b4(l), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager Managers to use its commercially their reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof5 of this Agreement.
(viiib) Notwithstanding anything If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify the applicable Manager of the proposed terms of such Placement. If the applicable Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, such Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the applicable Manager unless and until the Company and such Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to a Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the applicable Manager. A Terms Agreement may also specify certain provisions relating to the contrary hereinreoffering of such Shares by a Manager. The commitment of a Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the applicable Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the applicable Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall not sell also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 5 of this Agreement and any other information or documents required by the applicable Manager.
(1d) Series A Preferred Under no circumstances shall the number and aggregate amount of the Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of sold pursuant to this Agreement and any Terms Agreement exceed (i) $25.00 plus any accrued and unpaid dividends per share tothe aggregate amount set forth in Section 1, but excluding, the date of sale and (ii) 1.005the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Managers in writing.
(e) If the Company or a Manager has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other parties and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding any other provision of this Agreement the Company shall not request the sale of any Shares that would be sold, and the Managers shall not be obligated to sell, during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists at the Execution Time or subsequently may be amended, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, or during any other period in which the Company is, or could be deemed to be, in possession of material non-public information; provided that, unless otherwise agreed between the Company and the Managers, for purposes of this paragraph (bf) such period shall be deemed to end on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleon which the Company’s next subsequent Annual Report on Form 20-F or Report on Form 6-K that contains financial statements for a completed fiscal period, as the case may be, is filed with the Commission.
Appears in 1 contract
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE Nasdaq Global Select Market (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Nasdaq”), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Manager shall use its reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Stock sold by the Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on the Nasdaq at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.
(iii) The Company shall not authorize the issuance and sale of, through any of the Authorized Company Representatives, may instruct and the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales canshall not be effected obligated to use its reasonable efforts to sell, any Share at or above a price lower than the minimum price therefor designated from time to time by the Company Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Manager in any such instructionwriting. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiiv) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At ordinary brokers’ transactions between members of the Market Offerings Nasdaq that qualify for delivery of a Prospectus to the Nasdaq in accordance with Rule 153 (such transactions are hereinafter referred to as “Continuous Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the ManagerManager pursuant to a Terms Agreement.
(ivv) The compensation to the Manager, as an agent of the Company, Manager for sales of the Shares with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, not up to exceed 2.03.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) and payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”), shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE Nasdaq each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized If the Manager breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)Manager.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Date, Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Filing Date (as defined in Section 4(o) hereof, respectively4(x)), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(d) Under no circumstances shall the number and aggregate amount of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) the aggregate amount set forth in Section 1, (ii) the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing.
(e) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding anything to any other provision of this Agreement the contrary hereinCompany shall not request the sale of any Shares that would be sold, and the Manager shall not sell (1) Series A Preferred Shares be obligated to sell, during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists at a price higher than the Series A Maximum Price. For Execution Time, would prohibit purchases or sales of the purposes hereofCompany’s Common Stock by its officers or directors, or during any other period in which the “Series A Maximum Price” shall mean: (a) through October 4Company is, 2020or could be deemed to be, the product in possession of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salematerial non-public information.
Appears in 1 contract
Samples: Equity Distribution Agreement (Windstream Holdings, Inc.)
Sale and Delivery of Shares. (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 one or to the Managermore Managers, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by Each time that the Company wishes to issue and the Manager sell Shares on any day that (A) is a trading day for the NYSE NASDAQ Global Select Market (“NASDAQ”) (a “Trading Day”) (other than a day Trading Day on which the NYSE NASDAQ is scheduled to close prior to its regular weekday closing time) pursuant to this Agreement (each, a “Placement”), (B) the Company, through any it will instruct one Manager by telephone of the individuals listed parameters in accordance with which it desires Shares to be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, the minimum price below which sales may not be made and any limitation on the number of Shares that may be sold in any one day (a “Placement Notice”). The applicable Manager will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same business day (as defined below) on which such Placement Notice is delivered to such Manager, issue to the Company a notice by email addressed to all of the authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”)) confirming all of the parameters of the Placement. The Placement Notice shall be effective upon receipt by any of the Authorized Company Representatives of the email notice from the Manager, has instructed unless and until (i) the Manager entire amount of the Shares covered by telephone the Placement Notice have been sold, (confirmed promptly by electronic mailii) to make sales of Shares and in accordance with Section 4(a)(ii) hereof, the Company suspends or terminates the Placement Notice, (Ciii) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in issues a notice delivered by electronic mail to subsequent Placement Notice with parameters superseding those on the Manager substantially in the form attached hereto as Schedule C (a “earlier dated Placement Notice”, or (iv) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance this Agreement has been terminated under the Prospectus and the Registration Statement or in an amount in excess provisions of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the ManagerSection 10. Subject to the terms and conditions of this Section 3(a)hereof, the applicable Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated in the Placement Notice; provided, however, that the Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that no Manager shall have any such obligation in the event an offer or sale of the Shares on behalf of the Company may sell Shares by any method permitted by law in the judgment of such Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed to be an “at the marketunderwriter” offering as defined in Rule 415 under the 1933 Act in a transaction that is other than (A) by means of ordinary brokers’ transactions between members of the NASDAQ that qualify for delivery of a Prospectus to NASDAQ in accordance with Rule 153 under the 1933 Act or (B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the transactions described in (A) and (B) are hereinafter referred to as “At the Market OfferingOfferings”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the any Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailmail from such party), suspend the offering of the Shares for pursuant to this Agreement or suspend or terminate a specified period (a “Suspension Period”); previously issued Placement Notice; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iii) The Each Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a4(a), other than (A) by means of At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the applicable Manager.
(iv) The compensation to the any Manager, as an agent of the Company, for sales of the Shares shall be at a mutually agreed rate, not up to exceed 2.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a4(a). The foregoing rate of compensation shall not apply when such Manager acts as principal, in which case the Company may sell Shares to such Manager as principal at a price agreed upon at the relevant applicable time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the The applicable Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE NASDAQ each day on in which the Shares are sold pursuant to under this Section 3(a4(a) setting forth (i) the number aggregate amount of the Shares sold on such day, (ii) the aggregate Net Proceeds to the Company, and (iii) the aggregate compensation payable by the Company to the such Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a4(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the date on which such sales are made made, unless another date shall be agreed upon by the Company and the applicable Manager (provided that, if such Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day) (each such date, a “Settlement Date”). As used herein, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through a Manager for settlement on such date shall be issued and delivered by the Company to such Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of electronically transferring the Shares by the Company or its transfer agent to the such Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties heretoCompany and the Manager, which in all cases shall be freely tradable, transferable, registered shares eligible for delivery through DTC, in good deliverable formreturn for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the applicable Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the such Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi4(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o5(q) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation its representations and warranty warranties contained in this Agreement. Any obligation of the Manager Managers to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership hereinCompany, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiii) Notwithstanding anything If the Company wishes to issue and sell the Shares other than as set forth in Section 4(a) of this Agreement, it may elect, in its sole discretion, to notify one or more Managers of the proposed terms of such sale. If such Manager(s), acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, such Manager(s) and the Company will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. For avoidance of doubt, nothing contained in this Agreement shall be construed to require the Company to engage the Managers in connection with the offer and sale of any of the Company’s securities, including shares of the Stock, whether in connection with an underwriting offering or otherwise.
(c) In the event the Company engages one or more Managers for a sale of Shares that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act, the Company and the Manager(s) will agree to compensation that is customary for the Manager(s) with respect to such transactions.
(d) (i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the contrary hereinsale of such Shares, the Manager aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement would exceed the lesser of (A) the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Managers in writing. Under no circumstances shall not sell the Company cause or request the offer or sale of any Shares (1i) Series A Preferred Shares at a price higher lower than the Series A Maximum Price. For minimum price authorized from time to time by the purposes hereofCompany’s board of directors or a duly authorized committee thereof, and notified to the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale Managers in writing and (ii) 1.005; and at a price (bnet of the Managers’ commission, discount or other compensation for such sales payable by the Company pursuant to this Section 4) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends lower than the Company’s then current net asset value per share to(as calculated pursuant to the Investment Company Act), but excludingunless the Company has received the requisite approval from the Company’s board of directors or a duly authorized committee thereof, and notifies the date of saleManagers in writing.
Appears in 1 contract
Samples: Equity Distribution Agreement (New Mountain Finance Corp)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE Nasdaq Global Select Market (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Nasdaq”), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Manager shall use its reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Stock sold by the Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on the Nasdaq at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.
(iii) The Company shall not authorize the issuance and sale of, through any of the Authorized Company Representatives, may instruct and the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales canshall not be effected obligated to use its reasonable efforts to sell, any Share at or above a price lower than the minimum price therefor designated from time to time by the Company Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Manager in any such instructionwriting. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiiv) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings ordinary brokers’ transactions between members of Nasdaq that qualify for delivery of a prospectus to Nasdaq in accordance with Rule 153 (such transactions are hereinafter referred to as “Continuous Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the ManagerManager pursuant to a Terms Agreement.
(ivv) The compensation to the Manager, as an agent of the Company, Manager for sales of the Shares with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, not to exceed 2.02% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) and payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”), shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE Nasdaq each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the Manager to the Company, with payment to be made by the Company promptly after its receipt thereof.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized If the Manager breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)Manager.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Date, Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Filing Date (as defined in Section 4(o) hereof, respectively4(x)), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) If the Company wishes to issue and sell the Shares pursuant to this Agreement other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares and the time, date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(d) Under no circumstances shall the number and aggregate amount of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) the aggregate amount set forth in Section 1, (ii) the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing.
(e) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding anything to any other provision of this Agreement the contrary hereinCompany shall not request the sale of any Shares that would be sold, and the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereofbe obligated to sell, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus during any accrued and unpaid dividends per share toperiod in which the Company is, but excludingor could be deemed to be, the date in possession of sale and material non-public information or (ii) 1.005; except as provided in Section 3(g) hereof, at any time from and including the date on which the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement.
(g) If the Company wishes to offer or sell Shares at any time during the period from and including an Earnings Announcement through and including the time that is 24 hours after the corresponding Filing Time, the Company shall first (i) prepare and deliver to the Manager (with a copy to counsel to the Manager) a Current Report on Form 8-K that includes substantially the same financial and related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Manager and, prior to its filing, obtain the consent of the Manager to such filing (which consent shall not be unreasonably withheld), (iii) provide the Manager with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Sections 4(l), (m) and (bn), respectively, hereof, (iv) on October 5afford the Manager the opportunity to conduct a due diligence review in accordance with Section 4(o) hereof prior to filing such Earnings 8-K and (v) file such Earnings 8-K with the Commission, 2020 then the provision of clause (ii) of Section 3(f) shall not be applicable for the period from and thereafterafter the time at which the foregoing conditions shall have been satisfied (or, $25.00 plus any accrued and unpaid dividends per share to, but excludingif later, the date time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of salethe relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 3(f) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 4(l), (m) and (n),, respectively, hereof, and (B) this Section 3(f)(1) shall in no way affect or limit the operation of clause (i) in the paragraph above in this Section 3(f), which shall have independent application.
Appears in 1 contract
Samples: Equity Distribution Agreement (Clean Energy Fuels Corp.)
Sale and Delivery of Shares. (a) On Upon the basis of the representations, representations and warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through or to the Managerrespective Underwriters, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale each of the SharesUnderwriters, severally and the Manager not jointly, agrees to use its commercially reasonable efforts purchase from the Company the number of Firm Shares set forth opposite the name of such Underwriter in Schedule A attached hereto, subject to selladjustment in accordance with Section 7 hereof at a purchase price of $3.84 per Share, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are less an amount per Share equal to be sold on a daily basis any dividends or otherwise as shall be mutually agreed upon other distributions declared by the Company and payable on the Manager Firm Shares but not payable on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofAdditional Shares. The Company is advised by the Representatives that the Underwriters will designate in (i) make a notice delivered by electronic mail to public offering of their respective portions of the Manager substantially Firm Shares as soon after the effectiveness of this Agreement as in the form attached hereto as Schedule C Representatives’ judgment is advisable and (a “Placement Notice”ii) initially offer the maximum number of Firm Shares to be sold by upon the Manager daily as agreed to by terms and conditions set forth in the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized Prospectus. The Representatives may from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and increase or decrease the Alternative Distribution Agreements, in an amount in excess public offering price of the Maximum Number)Shares after the initial public offering to such extent as the Representatives may determine.
(b) In addition, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company grants to the several Underwriters the option (the “Additional Shares Option”) to purchase, and mutually agreed by upon the Manager. Subject basis of the representations and warranties and subject to the terms and conditions herein set forth, the Underwriters shall have the right to purchase, severally and not jointly, from the Company ratably in accordance with the number of Firm Shares to be purchased by each of them, all or a portion of the Additional Shares at the same purchase price per share to be paid by the Underwriters to the Company for the Firm Shares. The Additional Shares Option may be exercised by the Representatives on behalf of the several Underwriters at any time and from time to time on or before the thirtieth day following the date of this Section 3(a), the Manager may sell Shares Agreement by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon written notice to the other party hereto by telephone Company. Such notice shall set forth the aggregate number of Additional Shares as to which the Additional Shares Option is being exercised and the date and time when the Additional Shares are to be delivered (confirmed promptly by electronic mail), suspend the offering any such date and time being herein referred to as an “Additional Time of the Shares for a specified period (a “Suspension PeriodPurchase”); provided, however, that no Additional Time of Purchase shall be earlier than the Time of Purchase (Aas defined below) such Suspension Period or later than the tenth business day after the date on which the Additional Shares Option shall apply equally have been exercised. The number of Additional Shares to be sold to each Underwriter shall be the number which bears the same proportion to the Manager aggregate number of Additional Shares being purchased as the number of Firm Shares set forth opposite the name of such Underwriter on Schedule A hereto bears to the total number of Firm Shares (subject, in each case, to such adjustment as the Representatives may determine to eliminate fractional shares and each Alternative Manager to adjustment in accordance with Section 7 hereof).
(c) Payment of the purchase price for the Firm Shares shall be made to the Company by Federal Funds wire transfer against delivery of the certificates or security entitlements in respect of the Firm Shares to the Representatives through the facilities of The Depository Trust Company (“DTC”) for the respective accounts of the Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York City time, on November 20, 2018 (Bunless another time shall be agreed to by the Representatives and the Company, unless postponed in accordance with the provisions of Section 7 hereof). The time at which such payment and delivery are to be made is herein referred to as the “Time of Purchase.” Electronic transfer of the Firm Shares shall be made to the Representatives at the Time of Purchase in such names and in such denominations as the Representatives shall specify.
(d) Payment of the purchase price for the Additional Shares shall be made at the Additional Time of Purchase in the same manner and at the same office and time of day as the payment for the Firm Shares. Electronic transfer of the Additional Shares shall be made to the Representatives at the Additional Time of Purchase in such Suspension Period names and in such denominations as the Representatives shall specify.
(e) Each of the Representatives individually and not as representatives of the Underwriters, may (but shall not affect be obligated to) make payment of the purchase price for the Firm Shares or impair the parties’ respective Additional Shares, if any, to be purchased by any Underwriter whose funds have not been received by the Time of Purchase or any applicable Additional Time of Purchase, as the case may be, but such payment shall not relieve such Underwriter from its obligations with respect to Shares sold hereunder prior to hereunder.
(f) Deliveries of the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) documents described in Section 5 hereof with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination purchase of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be made at a mutually agreed ratethe offices of Xxxxxx, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). The remaining proceedsXxxx & Xxxxxxxx LLP at 000 Xxxx Xxxxxx, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salesXxxxx 0000, shall constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunderXxxxxxx, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designeeXxxxx 00000, at The Depository Trust Company through its Deposit and Withdrawal 10:00 A.M., New York City time, at Custodian System (“DWAC”) or by such other means the Time of delivery as may be mutually agreed upon by the parties heretoPurchase and, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Additional Time of Sale, Settlement Date and Representation Date (eachPurchase, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofcase may be.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 1 contract
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principalagent, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement orby the Company’s Board of Directors, together with all sales of Shares under this Agreement or a duly authorized committee thereof, and notified to the Alternative Distribution Agreements, Manager by electronic mail substantially in an amount in excess of the Maximum Numberform attached hereto as Exhibit 3(a)(i)), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”Offering (as defined below), including including, without limitation limitation, sales made directly by means of ordinary brokers’ transactions on the NYSE, on any other existing trading market for the Shares to or through a market makermaker at market prices prevailing at the time of sale, at prices related to prevailing market prices or directly at negotiated prices. Subject to any customer or client the terms and conditions of this Section 3(a), the Manager shall use its commercially reasonable efforts to offer and sell all of the Manager. The Shares designated; provided, however, that the Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation, in the event that an offer or sale of the Shares on behalf of the Company may also sell Shares in the reasonable judgment of the Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes that it may be deemed to be an “underwriter” under the Act in a transaction that is other than by any other method permitted by law, including but not limited means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in privately negotiated transactionsaccordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(n), 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w4(q) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of the Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on in which the Shares are sold pursuant to this Section 3(a) setting forth (i) the number amount of the Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o4(n) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiii) Notwithstanding anything If the Company wishes to issue and sell the Shares other than as set forth in Section 3(a) hereof (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Company and the Manager will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate gross sales proceeds of the Shares sold pursuant to this Agreement exceed the lesser of (A) the amount set forth in Section 1 hereof and (B) the amount available for offer and sale under the currently effective Registration Statement nor shall the aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized to be issued and sold from time to time under this Agreement by the Company’s Board of Directors, or a duly authorized committee thereof, and notified to the contrary hereinManager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party, and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares through or to the Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Manager, sales effected pursuant to this Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act (each such date, a “Filing Date”) and ends, for all periods, on the earlier of (i) the date that directors and officers are no longer permitted to effect transactions in securities of the Company pursuant to the Company’s policy on xxxxxxx xxxxxxx as in effect from time to time and (ii) the end of the quarter in which the applicable Filing Date occurs. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Manager, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not sell be obligated to sell, during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(1f) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of The Company acknowledges and agrees that (i) $25.00 plus any accrued and unpaid dividends per share tothere can be no assurance that the Manager will be successful in selling the Shares, but excluding, the date of sale and (ii) 1.005; the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (biii) the Manager shall be under no obligation to purchase Shares on October 5a principal basis pursuant to this Agreement unless a Terms Agreement, 2020 in form and thereaftersubstance mutually satisfactory to the Company and Manager, $25.00 plus shall have been executed by the Company and the Manager.
(g) The Company agrees that any accrued offer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through only the Manager on any single given day, and unpaid dividends per share to, but excluding, the date of saleCompany shall in no event request that the Manager sell Shares on the same day.
Appears in 1 contract
Samples: Equity Distribution Agreement (Education Realty Trust, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.:
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)NYSE, (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager (daily or otherwise) as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Shares sold by the Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on the NYSE at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.
(iii) The Company shall not authorize the issuance and sale of, through any of the Authorized Company Representatives, may instruct and the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales canshall not be effected obligated to use its commercially reasonable efforts to sell, any Share at or above a price lower than the minimum price therefor designated from time to time by the Company Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Manager in any such instructionwriting. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified any reason and at any time, and the obligations of the Company contained in Sections 4(k), 4(l), 4(m), 4(n), 4(o) and 4(p) of this Agreement shall be deferred for any period that the Company has suspended the offering of Shares pursuant to this Section 3(a)(iii) (each, a “Suspension Period”)) and shall recommence upon the termination of such suspension; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiiv) The Subject to the terms and conditions of this Section 3(a), the Manager hereby covenants and agrees not to make that any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than will be made by (A) any method permitted by means of At law deemed to be an “at the Market Offerings and market” offering as defined in Rule 415 under the Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Shares or to or through a market maker or (B) such by any other sales method permitted by law, including but not limited to privately negotiated transactions.
(v) The amount of Shares on behalf of the Company in its capacity as agent of the Company as shall any commission, discount or other compensation to be mutually agreed upon paid by the Company and the Manager.
(iv) The compensation to the Manager, when the Manager is acting as an agent agent, in connection with the sale of the Company, for sales of Shares shall be at a mutually agreed rate, not up to exceed 2.02.00% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The remaining proceedsamount of any commission, after further deduction for discount or other compensation to be paid by the Company to the Manager, when Manager is acting as principal, in connection with the sale of the Shares shall be as separately agreed among the parties hereto at the time of any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, . The remaining proceeds shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to an account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company and wishes to accept amended terms, the Manager and the Company will enter into a separate terms agreement or underwriting or similar agreement setting forth the terms of such Placement. A terms agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any terms agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each terms agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such terms agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(c) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed the lesser of (i) together with all sales of Shares under this Agreement and each of the Alternative Equity Distribution Agreements, the Maximum Amount, and (ii) the amount authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the by the Board, or a duly authorized committee thereof, and notified to the Manager in writing. Further, under no circumstances shall the aggregate offering price of Shares sold pursuant to this Agreement and the Alternative Equity Distribution Agreements, including any separate terms agreement or underwriting or similar agreement covering principal transactions described in Section 1 of this Agreement and the Alternative Equity Distribution Agreements, exceed the Maximum Amount.
(d) If any of the parties has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other parties and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through only one of the Manager or an Alternative Manager on any single given day, but in no event more than one, and the Company shall in no event request that the Manager and one or both of the Alternative Managers sell Shares on the same day.
(f) Notwithstanding anything to any other provision of this Agreement, the contrary hereinCompany agrees that no sales of Shares shall take place, and the Company shall not request the sale of any Shares, and the Manager shall not sell be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information; provided that, notwithstanding the provisions of this paragraph (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereofg), the “Series A Maximum Price” Company agrees that no sales of Shares shall mean: take place during the twenty (a20) through October 4, 2020, the product of calendar days prior to an Earnings Release (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleas defined below).
Appears in 1 contract
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell Shares through or to the Manager, applicable Agent acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale agent. Sales of the Shares, and the Manager agrees to use its commercially reasonable efforts to sellif any, through an Agent acting as sales agent for will be made by means of (i) ordinary brokers’ transactions on the CompanyNYSE or another United States “marketplace”, as such term is defined in National Instrument 21-101 – Marketplace Operation (“NI 21-101”), upon which the Shares are listed, quoted or otherwise traded (“United States marketplace”), (ii) ordinary brokers’ transactions on the TSX that constitute an “at-the-market-distribution” under NI 44-102, (iii) in the case of Canadian Agents, another Canadian “marketplace”, as such term is defined in NI 21-101, upon which the Shares are listed, quoted or otherwise traded (“Canadian marketplace” and together with the United States marketplace, “marketplaces” and each, a “marketplace”) or (iv) in the case of U.S. Agents, otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices. The U.S. Agents shall not (i) directly or indirectly, advertise or solicit offers to purchase or sell Shares in Canada, and (ii) sell Shares on the following termsTSX or on any Canadian marketplace.
(ib) The Shares are to be sold through an Agent on a daily an agented basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE or the TSX, as applicable, is closed or scheduled to close prior to its regular weekday closing time) (each, a “Trading Day”) on which (i) the Company has instructed such Agent to make such sales and (ii) the Company has satisfied its covenants and conditions specified in Sections 4 and 5 hereof. In no event shall the Company instruct any Agent to make such sales on or after the date that is two Trading Days before the Renewal Deadline, as defined in Section 3(t), (B) unless the CompanyCompany has filed a new Canadian short form base shelf prospectus and a new Canadian prospectus supplement relating to the Shares and a new registration statement on Form F-10 under the 1933 Act that has become effective and a new U.S. prospectus supplement, through any and a new appointment of the individuals listed as authorized representatives agent for service of process upon the Company on Schedule B hereto (Form F-X, in form and substance satisfactory to the “Authorized Agents. On any Trading Day, the Company Representatives”)may sell Shares through only one Agent and, has instructed if it determines to do so, shall instruct the Manager applicable Agent by telephone (confirmed promptly by electronic mailtelecopy or email, which confirmation will be promptly acknowledged by such Agent) as to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus on such Trading Day and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and sold. It is expressly acknowledged that no Agent shall have any other limitations specified by obligation to purchase Shares as principal, whether from the Company and mutually agreed by the Manageror otherwise. Subject to the terms and conditions specified herein (including, without limitation, the accuracy of this the representations and warranties of the Company and the performance by the Company of its covenants and other obligations, contained herein and the satisfaction of the additional conditions specified in Section 3(a5 hereof), such Agent shall use its commercially reasonable efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell all of the Manager may Shares so designated by the Company as sales agent in accordance with such instruction. With respect to any Trading Day, the Company shall give at least one business day’s prior written notice by telecopy or email to the Agents as to any change of the Agent through whom sales of Shares as sales agent will be made. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Company or its subsidiaries or to a trustee or other person acquiring Shares for the accounts of such persons in which any Agent is acting for the Company in a capacity other than as Agent under this Agreement. The Company and the Agents each acknowledge and agree that (A) there can be no assurance that any Agent will be successful in selling any Shares or as to the price at which any Shares are sold, and (B) the Agents will not incur any liability or obligation to the Company if they fail to sell Shares for any reason other than a failure to use their respective commercially reasonable efforts, consistent with their normal trading and sales practices and applicable law and regulations, to sell such Shares as required by any method permitted by law deemed this Agreement.
(c) Each of the Agents hereby covenants and agrees that, if and when an Agent has received an instruction to be an “at the market” offering as defined in Rule 415 under the Act make sales pursuant to Section 2(b) above (an “At Agency Transaction Instruction”) that has not been declined, suspended or terminated in accordance with the Market Offering”)terms hereof, including without limitation sales such Agent will prudently and actively monitor the market’s reaction to trades made directly on any “marketplace” (as such term is defined in NI 21-101) pursuant to this Agreement in order to evaluate the likely market impact of future trades, and that, if such Agent has concerns as to whether a particular sale may have a significant effect on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client price of the ManagerCommon Shares, the applicable Agent will immediately recommend to the Company against effecting the trade at that time or on the terms proposed. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through Company acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Authorized Company Representatives, may instruct the Manager by telephone Common Shares.
(confirmed promptly by electronic maild) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the The Company or the Manager Agent through whom the sale of Shares are to be made as sales agent on any Trading Day may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailtelecopy or email, which confirmation will be promptly acknowledged by the receiving party), suspend the offering of the Shares with respect to which such Agent is acting as sales agent for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold sold, or with respect to Shares that the Company has agreed to sell, hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiie) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the applicable Agent acting as sales agent of the Company shall be equal to, in the discretion of such Agent but subject to the specific instructions of the Company, the market price prevailing at the time of sale for the Shares sold by such Agent on the NYSE or the TSX, as applicable, or with respect to sales by the U.S. Agents, otherwise at prices related to prevailing market prices or negotiated prices. The remaining proceedsaggregate compensation payable to the Agents for sales of Shares with respect to which one or more Agents acts as sales agent shall be set forth in the instruction provided pursuant to section 2(b) for such transaction and shall be up to 2.00% of the gross sales price for such Shares (the “Agents’ Commission”), payable in U.S. dollars. The gross proceeds after further deduction for any transaction fees, transfer taxes or similar taxes or fees imposed by any governmental Governmental Entity or self-regulatory organization in respect of such sales, shall constitute be referred to herein as the net proceeds to “Remaining Proceeds”. The applicable Agent shall notify the Company from as promptly as practicable if any deduction referenced in the preceding sentence will be made. Notwithstanding the foregoing, in the event the Company engages an Agent as sales agent for the sale of Shares that would constitute a “distribution” within the meaning of Rule 100 of Regulation M under the 1934 Act, the Company and such Shares (the “Net Proceeds”)Agent will agree to compensation for such Agent that is customary for such sales.
(vf) If acting as sales agent hereunder, the Manager applicable Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE or the TSX, as applicable, on each day Trading Day on which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the Net aggregate gross sales proceeds of the Shares, the Agents’ Commission and the aggregate Remaining Proceeds to the Company.
(g) Under no circumstances shall the aggregate gross sales price or number, as the case may be, of Shares offered or sold pursuant to this Agreement, or which are the subject of instructions to an Agent as sales agent pursuant to Section 2(b) hereof, exceed the aggregate gross sales price or number, as the case may be, of Shares (i) referred to in the preamble paragraph of this Agreement, as reduced by prior sales of Shares under this Agreement, (ii) available for sale under the Canadian Base Prospectus and Registration Statement or (iii) duly authorized from time to time to be issued and sold under this Agreement by the Company or approved for listing on the NYSE or TSX, as applicable, and, in each case referred to in clause (ii) and (iii), notified to the Agents in writing. Under no circumstances shall any Shares with respect to which an Agent acts as sales agent be offered or sold, or be the subject of instructions to an Agent as sales agent pursuant to Section 2(b) hereof, at a price lower than the compensation payable minimum price therefor duly authorized from time to time by the Company and notified to the Manager Agents in writing. When determining the aggregate value of the Shares sold, the Company will use the daily exchange rate posted by the Bank of Canada on the date the applicable Shares were sold to determine the United States dollar equivalent of any Shares which were sold in Canadian dollars. The Agents shall have no responsibility for maintaining records with respect to such salesShares available for sale under the Canadian Base Prospectus and Registration Statement or for determining the aggregate gross sales price, number or minimum price of Shares duly authorized by the Company.
(vih) If the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 1934 Act are not satisfied with respect to the Company or the Shares, the Company shall promptly notify the Agents and future offers and sales of Shares through the Agents on an agented basis under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party hereto. If thereafter the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 1934 Act become satisfied with respect to the Company or the Shares, the Company shall promptly notify the Agents.
(i) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the trade date on which such sales are made made, or on such day as is otherwise required by Rule 15(c)6-1 under the 1934 Act, unless another date shall be agreed to in writing by the Company and the applicable Agent (each such dateday, a “Settlement Date”). On each Settlement Date for the sale of Shares through an Agent as sales agent, such Shares shall be delivered by the Company to such Agent in book-entry form to such Agent’s account (provided that the applicable Agent shall have given the Company written notice thereof including the information with respect to such Agent’s account prior to the relevant Settlement Date) at The Canadian Depository for Securities or The Depository Trust Company, as applicable, against payment by such Agent of the Net Remaining Proceeds from the sale of such Shares shall be delivered to the Company in same day funds delivered to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldCompany. Settlement for all such Shares shall be effected by free delivery of the Shares by If the Company (or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”agent) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon on its obligation to deliver the Shares through an Agent as sales agent on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager such Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager such Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viij) At each Time Notwithstanding any other provision of Salethis Agreement, Settlement Date the Company shall not offer or sell, or instruct an Agent to offer or sell, any Shares through an Agent as sales agent (and, by notice to the Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Shares prior to the commencement of the periods referenced below), and Representation Date the Agents shall not be obligated to make any such offer or sale of Shares, (i) during any period in which the Company is, or could be deemed to be, in possession of material non-public information or (ii) except as provided in Section 2(k) hereof, at any time during the period commencing on the 10th business day prior to the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a quarterly report or quarterly financial statements, annual information form, current report on Form 6-K or annual financial statements/annual report on Form 40-F with the Canadian Qualifying Authorities or the Commission, as applicable (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement.
(k) Notwithstanding clause (ii) of Section 2(j) hereof, if the Company wishes to offer or sell Shares through an Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall first (i) prepare and deliver to such Agent (with a copy to counsel for the Agents) a current report on Form 6-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 6-K”), in form and substance reasonably satisfactory to such Agent, and, prior to its filing, obtain the written consent of such Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide such Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 3(n), 3(o) and 3(p), respectively, hereof, (iii) afford such Agent the opportunity to conduct a due diligence review in accordance with Section 3(s) hereof prior to filing such Earnings 6-K and (iv) file such Earnings 6-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 2(k) shall not relieve the Company from any of its obligations under this Agreement with respect to any quarterly report or quarterly financial statements, annual information form or annual financial statements/annual report on Form 40-F, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Section 3(n), 3(o) and 3(p), respectively, hereof, and (B) this Section 2(k) shall in no way affect or limit the operation of clause (i) of Section 2(j) hereof, which shall have independent application.
(l) The Agents, severally and not jointly, covenant that the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Shares in connection with the distribution of Shares in an “at-the-market distribution” (as defined in Section 2(b), Section 3(a)(viNI 44-102) and Section 4(o) hereof, respectively), or effect any other transactions that are intended to stabilize or maintain the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation market price of the Manager to use its commercially reasonable efforts to sell Common Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofconnection with such distribution.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 1 contract
Samples: Atm Equity Offering Sales Agreement (Wheaton Precious Metals Corp.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, Agent acting as sales agent and/or principaland the Agent agrees to use its commercially reasonable efforts to sell as sales agent for the Company, the Shares. The Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company other than (A) by means of ordinary brokers’ transactions that qualify for delivery of a Prospectus to NASDAQ in accordance with Rule 153 under the 1933 Act (such transactions are hereinafter referred to as “At the Market Offerings”) and when it provides instructions, (B) such other sales of the Shares on behalf of the Company in its discretion, for capacity as agent of the Company as shall be agreed by the Company and the Agent. The Agent covenants and agrees that it shall not engage in a sale of Shares on the Company's behalf that would constitute the sale of a "block" under Rule 10b-18(a)(5) under the SharesExchange Act or a "distribution" within the meaning of Rule 100 of Regulation M under the Exchange Act without the Company's prior written consent. Subject to the previous sentence, the Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is not an At the Market Offering and the Company consents to such sale, the Company will provide to the Agent, at the Agent’s request and upon reasonable advance notice to the Company, on or prior to the Settlement Date (as defined below) for such transaction, the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 hereof, each dated the Settlement Date, and such other documents and information as the Agent shall reasonably request. Solely with respect to such sales that would constitute a "block" or a "distribution," the Agent shall use commercially reasonable efforts to assist the Company in obtaining performance of its obligations by each purchaser whose offer to purchase Shares has been solicited by the Agent and accepted by the Company. Each time that the Company wishes to issue and sell Shares hereunder (each, a “Placement”), it will notify the Agent by email notice (or other method mutually agreed to in writing by the parties) containing the parameters in accordance with which it desires Shares to be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Schedule I. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule II (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Agent set forth on Schedule II, as such Schedule II may be amended from time to time. If the Agent wishes to accept such proposed terms included in the Placement Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same Business Day on which such Placement Notice is delivered to the Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Agent set forth on Schedule II) accepting such terms (the "Agent Acceptance") or setting forth the terms that the Agent is willing to accept. Where the terms provided in the Placement Notice are proposed to be modified as provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Agent until the Company delivers to the Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the "Acceptance"), which email or other communication shall be addressed to all of the individuals from the Company and the Agent set forth on Schedule II and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Agent, on the same Business Day. The Placement Notice shall be effective upon receipt by the Company of the Agent Acceptance or, if modified as provided above, upon receipt by the Agent of the Company Acceptance, as the case may be, unless and until (i) the entire amount of the Shares covered by the Acceptance have been sold, (ii) in accordance with the notice requirements set forth in Section 4(c), the Company suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) the Agreement has been terminated under the provisions of Section 9. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement unless and until the Company delivers a Placement Notice to the Agent and there occurs with respect thereto either (i) an Agent Acceptance or (ii) a Company Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the relevant Acceptance and herein. In the event of a conflict between the terms of this Agreement and the terms of an Acceptance, the terms of the Acceptance will control. Subject to the terms and conditions hereof, upon the existence of an Acceptance, the Agent shall use its commercially reasonable efforts to sell as sales agent Shares designated in the Acceptance up to the amount specified, and otherwise in accordance with the terms of such Acceptance. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling Shares and (B) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
(b) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Manager agrees Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, as sales agent for the Company, the any Shares on the following terms.
(i) The Shares are at a price lower than the minimum price therefor authorized from time to be sold on a daily basis time, or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (Aii) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makerBoard, or directly to any customer or client of a duly authorized committee thereof, and as set forth in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionapplicable Acceptance. In addition, the Company or the Manager Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering telecopy or email to all of the individuals of the other party set forth on Schedule II, which confirmation will be promptly acknowledged by the receiving party) suspend or refuse to undertake any sale of Shares designated in such Acceptance for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice. Each of the parties hereto agrees that no such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) effective against the other unless it originates from an individual named on Schedule II and 4(w) with respect is made to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination individuals of the Suspension Periodother party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time.
(iiic) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on NASDAQ or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be equal to 2% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vd) If acting as sales agent hereunder, the Manager The Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE NASDAQ each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales. For the avoidance of doubt, such written confirmation will be provided to the Company no later than the opening of trading on the immediately following trading day on NASDAQ.
(vie) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in Section 1 of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement, the RBC Agreement and the BMO Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s Board, or a duly authorized committee thereof, and notified to the Agent in writing as set forth in the applicable Placement Notice. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Agent shall calculate and provide in writing to the Company, on a monthly basis, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(f) Settlement for sales of Shares pursuant to this Section 3(a) 4 and made in accordance with the terms of the applicable Acceptance will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day for NASDAQ (other than a day on the NYSE which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the sale of Agent for settlement on such Shares date shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon against payments by the parties hereto, which Agent of the Net Proceeds from the sale of such Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable formsame day funds delivered to an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viig) At each Time of SaleApplicable Time, each Settlement Date and each Representation Date (each, as such term is defined in Section 2(b), Section 3(a)(vi6(n) and Section 4(o) hereof, respectivelyherein), the Company Company, the Adviser and the Operating Partnership Administrator shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any The obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof4 of this Agreement.
(viiih) Notwithstanding anything The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Common Stock or any other equity security of the contrary hereinCompany pursuant to this Agreement shall only be effected by or through only one of Agent, RBC or BMO on any single given day, but in no event by more than one of them, and the Manager Company shall not in no event request that more than one of Agent, RBC or BMO sell (1) Series A Preferred Shares at a price higher than shares of Common Stock on the Series A Maximum Price. For the purposes hereofsame day; provided, the “Series A Maximum Price” shall mean: (a) through October 4however, 2020, the product of that (i) $25.00 plus any accrued and unpaid dividends per share to, but excludingthe foregoing limitation shall not apply to sales solely to employees of the Company, the date Adviser, the Administrator or their respective affiliates, or to a trustee or other person acquiring such securities for the accounts of sale such persons and (ii) 1.005; such limitation shall not apply on any day during which no sales are made pursuant to this Agreement.
(i) Except as may be mutually agreed by the Company and the Agent the Company and the Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, (i) with respect to the Company’s quarterly filings on Form 10-Q, during any period commencing upon the 30th day following the end of each fiscal quarter and ending on the date on which the Company files with the Commission a Prospectus Supplement under Rule 497 relating to the Shares that includes updated financial information as of the end of the Company’s most recent quarterly period (the “10-Q Filing”) and (bii) with respect to the Company’s annual report filings on October 5Form 10-K, 2020 during any period commencing upon the 50th day following the end of the Company’s fiscal year and thereafterending on the date on which the Company files with the Commission a Prospectus Supplement under Rule 497 relating to the Shares that includes updated audited financial information as of the end of the Company’s most recent fiscal year (the “10-K Filing”) (each of a 10-Q Filing and/or a 10-K Filing shall also be referred to herein as a “Quarterly 497 Filing”). To the extent the Company releases its earnings for its most recent quarterly period or fiscal year, $25.00 plus any accrued as applicable (an “Earnings Release”) before it files with the Commission its quarterly report on Form 10-Q for such quarterly period or annual repot on Form 10-K for such fiscal year, as applicable, then the Agent and unpaid dividends per share to, but excluding, the Company agree that no sales of Shares shall take place for the period beginning on the date of salethe Earnings Release and ending on the date of the applicable Quarterly 497 Filing. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Agent, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is in possession of material non-public information.
Appears in 1 contract
Samples: Equity Distribution Agreement (Prospect Capital Corp)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the ManagerManagers, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagents, and the each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following termsterms set forth below. Notwithstanding anything to the contrary in this Agreement, any Manager may decline, for any reason in its sole discretion, to act as sales agent for the Company hereunder with respect to one or more sets of Company instructions for the sale of the Shares.
(i) The Shares are to be sold by one of the Managers on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager Managers on any day that (A) is a trading day (a “Trading Day”) for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)Nasdaq, (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the such Manager by telephone (confirmed promptly or by electronic mail) mail to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The On a Trading Day that the Company wishes to sell the Shares, the Company may sell the Shares through only one Manager and, if it determines to do so in its discretion, the Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the such Manager daily as agreed to by the such Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, such Manager shall use its commercially reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The Manager through whom sales of the Shares as sales agent are then being made through this Section 3(a), ) is referred to as the “Selling Manager.” The gross sales price of the Shares sold under this Section 3(a) shall be the market price for shares of the Company’s Common Stock sold by the Selling Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on the Nasdaq at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that any Manager will be successful in selling the foregoingShares, the Company, through any of the Authorized Company Representatives, may instruct the (B) no Manager by telephone (confirmed promptly by electronic mail) not will incur liability or obligation to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or any other person or entity if it does not sell Shares for any reason other than a failure by such Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement and (C) no Manager shall be under any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by such Manager and the Company pursuant to a Terms Agreement.
(iii) The Company shall not authorize the issuance and sale of, and no Manager shall be obligated to use its commercially reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Managers in writing. The Company or any Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there notice. The Managers shall be have no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) responsibility for maintaining records with respect to the delivery of certificatesShares available for offer or sale under the Registration Statement or for determining the aggregate gross proceeds, opinions, number or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales minimum price of Shares on behalf of duly authorized by the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The Managers may sell shares in negotiated transactions, including block trades, or transactions that are deemed to be ‘‘at the market’’ offerings as defined in Rule 415 under the Securities Act of 1933, as amended, or the Securities Act, including sales made by means of ordinary brokers’ transactions, including directly on Nasdaq, or sales made to or through a market maker other than on an exchange at prevailing market prices, at prices related to prevailing market prices or at negotiated prices or by any other method permitted by law. No Manager shall purchase Shares for its own account as principal unless expressly authorized to do so by the Company pursuant to a Terms Agreement.
(v) The compensation to the Selling Manager, as an agent of the Company, for sales of the Shares hereunder shall be at a mutually agreed rate, not equal to exceed 2.02.5 % of the gross sales price of any the Shares sold pursuant by such Manager to this Section 3(a)) and payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when any Manager acts as principal, in which case the Company may sell Shares to such Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”), shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the Each Selling Manager shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE Nasdaq each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the such Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the applicable Selling Manager to the Company, with payment to be made by the Company promptly after its receipt thereof.
(vivii) Settlement Until May 28, 2024, settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the date on which such sales are made; after May 28, 2024, settlement for sales of the Shares pursuant to this Section 3(a) will occur, unless the parties agree otherwise, on the first business day that is also a Trading Day following the date on which any sales were made (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through a Manager for settlement on such date shall be issued and delivered by the Company to such Manager against payment of the aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the such Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the such Manager any commission to which it would otherwise be entitled absent such default. The Authorized If a Manager breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, such Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)such Manager.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Representation Date (each, as defined in Section 2(b4(j), Section 3(a)(vi) and Section 4(o) hereof, respectively)), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the any Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) Notwithstanding anything If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify a Manager of the proposed terms of such Placement. If such Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, such Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or such Manager unless and until the Company and such Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to any Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, such Manager. A Terms Agreement may also specify certain provisions relating to the contrary hereinreoffering of such Shares by such Manager. The commitment of the applicable Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the applicable Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with such Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall not sell also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the applicable Manager.
(1d) Series A Preferred Under no circumstances shall the number and aggregate amount of the Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of sold pursuant to this Agreement and any Terms Agreement exceed (i) $25.00 plus any accrued and unpaid dividends per share tothe aggregate amount set forth in Section 1, but excluding, the date of sale and (ii) 1.005; the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Managers in writing.
(be) on October 5If any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, 2020 it shall promptly notify the other party and thereaftersales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding any other provision of this Agreement the Company shall not request the sale of any Shares that would be sold, $25.00 plus and no Manager shall be obligated to sell, during any accrued and unpaid dividends per share toperiod in which the Company is, but excludingor could be deemed to be, the date in possession of salematerial non-public information.
Appears in 1 contract
Samples: Equity Distribution Agreement (Soundhound Ai, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, Agent acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares. The Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the following terms.
Company other than (iA) The by means of ordinary brokers’ transactions that qualify for delivery of a Prospectus to Nasdaq in accordance with Rule 153 under the 1933 Act (such transactions are hereinafter referred to as “At the Market Offerings”) and (B) such other sales of the Shares are to be sold on a daily basis or otherwise behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager Agent. The Agent covenants and agrees that it shall not engage in a sale of Shares on any day the Company’s behalf that (Awould constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act without the Company’s prior written consent. Subject to the previous sentence, the Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is a trading day for not an At the NYSE (other than a day on which Market Offering and the NYSE is scheduled Company consents to close prior such sale, the Company will provide to its regular weekday closing time)the Agent, (B) at the Agent’s request and upon reasonable advance notice to the Company, through any on or prior to the Settlement Date (as defined below) for such transaction, the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 hereof, each dated the individuals listed Settlement Date, and such other documents and information as authorized representatives of the Agent shall reasonably request. Solely with respect to such sales that would constitute a “block” or a “distribution,” the Agent shall use commercially reasonable efforts to assist the Company on Schedule B hereto in obtaining performance of its obligations by each purchaser whose offer to purchase Shares has been solicited by the Agent and accepted by the Company. Each time that the Company wishes to issue and sell Shares hereunder (the each, a “Authorized Company RepresentativesPlacement”), has instructed it will notify the Manager Agent by telephone email notice (confirmed promptly or other method mutually agreed to in writing by electronic mailthe parties) containing the parameters in accordance with which it desires Shares to make sales be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C any minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Schedule I. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule II (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Agent set forth on Schedule II, as such Schedule II may be amended from time to time. If the Agent wishes to accept such proposed terms included in the Placement Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same Business Day on which such Placement Notice is delivered to the Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Agent set forth on Schedule II) accepting such terms (the “Agent Acceptance”) or setting forth the terms that the Agent is willing to accept. Where the terms provided in the Placement Notice are proposed to be modified as provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Agent until the Company delivers to the Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the “Acceptance”), which email or other communication shall be addressed to all of the individuals from the Company and the Agent set forth on Schedule II and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Agent, on the same Business Day. The Placement Notice shall be effective upon receipt by the Company of the Agent Acceptance or, if modified as provided above, upon receipt by the Agent of the Company Acceptance, as the case may be, unless and until (i) the maximum number entire amount of the Shares to be sold covered by the Manager daily Acceptance have been sold, (ii) in accordance with the notice requirements set forth in Section 4(c), the Company suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) the Agreement has been terminated under the provisions of Section 9. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement unless and until the Company delivers a Placement Notice to the Agent and there occurs with respect thereto either (i) an Agent Acceptance or (ii) a Company Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the relevant Acceptance and herein. In the event of a conflict between the terms of this Agreement and the terms of an Acceptance, the terms of the Acceptance will control. Subject to the terms and conditions hereof, upon the existence of an Acceptance, the Agent shall use its commercially reasonable efforts to sell as agreed sales agent Shares designated in the Acceptance up to the amount specified, and otherwise in accordance with the terms of such Acceptance. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling Shares and (B) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
(b) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Agent as sales agent shall not be permitted to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in any event not a number in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makerBoard, or directly to any customer or client of a duly authorized committee thereof, and as set forth in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionapplicable Acceptance. In addition, the Company or the Manager Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering telecopy or email to all of the individuals of the other party set forth on Schedule II, which confirmation will be promptly acknowledged by the receiving party) suspend or refuse to undertake any sale of Shares designated in such Acceptance for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice. Each of the parties hereto agrees that no such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) effective against the other unless it originates from an individual named on Schedule II and 4(w) with respect is made to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination individuals of the Suspension Periodother party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time.
(iiic) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be a maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. In lieu of the Company paying all compensation payable to the Agent for the sale of the Shares pursuant to this Agreement, the Adviser reserves the right to pay any portion of such compensation in its sole discretion. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vd) If acting as sales agent hereunder, the Manager The Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Nasdaq each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales. For the avoidance of doubt, such written confirmation will be provided to the Company no later than the opening of trading on the immediately following trading day on Nasdaq.
(vie) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in Section 1 of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement, or (iii) authorized from time to time to be issued and sold under this Agreement and the Sales Agreements by the Board, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s Board, or a duly authorized committee thereof, and notified to the Agent in writing as set forth in the applicable Placement Notice. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Agent shall calculate and provide in writing to the Company, on a monthly basis, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(f) Settlement for sales of Shares pursuant to this Section 3(a) 4 and made in accordance with the terms of the applicable Acceptance will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day for Nasdaq (other than a day on the NYSE which Nasdaq is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent, and in each case, in accordance with applicable rules and regulations (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the sale of Agent for settlement on such Shares date shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon against payments by the parties hereto, which Agent of the Net Proceeds from the sale of such Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable formsame day funds delivered to an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement DateDate pursuant to this Agreement, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viig) At each Time of SaleApplicable Time, each Settlement Date and each Representation Date (each, as such term is defined in Section 2(b), Section 3(a)(vi6(n) and Section 4(o) hereof, respectivelyherein), the Company Company, the Adviser and the Operating Partnership Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any The obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof4 of this Agreement.
(viiih) Notwithstanding anything The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Common Stock pursuant to this Agreement and the contrary hereinSales Agreements shall only be effected by or through only the Agent or one of the Other Agents, as applicable, on any single given day as determined by the Manager Company, but in no event by more than one of them, and the Company shall not in no event request that more than one of Agent or the Other Agents sell (1) Series A Preferred Shares at a price higher than shares of Common Stock on the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of same day.
(i) $25.00 plus Except as may be mutually agreed by the Company and the Agent, the Company and the Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any accrued Shares that would be sold, and unpaid dividends per share tothe Agent shall not be obligated to sell, but excludingduring: the period that commences on the fifth (5th) business day prior to the Company’s filing of its quarterly report on Form 10-Q or annual report on Form 10-K, as applicable, and ending on the respective date on which the Company files its quarterly report on Form 10-Q (the “10-Q Filing”) or its annual report on Form 10-K (the “10-K Filing”) (each of a 10-Q Filing and/or a 10-K Filing shall also be referred to herein as a “Quarterly Filing”). To the extent the Company releases its earnings for its most recent quarterly period or fiscal year, as applicable (an “Earnings Release”) before it files with the Commission its quarterly report on Form 10-Q for such quarterly period or annual report on Form 10-K for such fiscal year, as applicable, then the Agent and the Company agree that no sales of Shares shall take place for the period beginning on the date of sale the Earnings Release and (ii) 1.005; and (b) ending on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salethe applicable Quarterly Filing. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Agent, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is in possession of material non-public information.
Appears in 1 contract
Samples: Sales Agreement (Gladstone Investment Corporation\de)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject (i) Subject to the terms and conditions herein set forthforth herein, the Company agrees to may issue and sell Shares through or to the ManagerAgent, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts to sell, acting as sales agent for the Company, or directly to the Shares on the following termsAgent, acting as principal, from time to time (any such sale, a “Direct Sale”).
(i) In addition, subject to the terms and conditions set forth herein, the Company may, from time to time, in consultation with the Forward Purchaser and the Agent, instruct the Forward Purchaser or its affiliate to borrow, offer and sell Shares to or through the Agent, acting as forward seller (any such sale, a “Forward Sale”). The Agent agrees, when acting as sales agent, to use its reasonable efforts to sell the Shares under a Forward Sale in the manner contemplated by the General Disclosure Package.
(b) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and Company, the Manager Agent and, if applicable, the Forward Purchaser on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (Beach, a “Trading Day”) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) that the Company has satisfied its obligations under Section 6 hereof4 of this Agreement and that the Company has instructed the Agent to make such sales. The Company will designate On any Trading Day, the Company, in a notice delivered consultation with the Agent and, if applicable, the Forward Purchaser, may instruct the Agent by electronic mail telephone (confirmed promptly by telecopy or email, which confirmation shall contain the mutually agreed upon terms for the sales and such confirmation shall be promptly acknowledged by the Agent) (together, the “Instruction”) as to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”i) the maximum number amount of Shares to be sold by the Manager daily as agreed to by the Manager Agent on such day (in any event not in excess of the amount then available for issuance sale under the Prospectus and the currently effective Registration Statement Statement), (ii) the minimum price per Share at which such Shares may be sold, (iii) whether the sale of such Shares will be a Direct Sale or a Forward Sale, and (iv) in the case of a Forward Sale, any terms, provisions or information that is required or contemplated by the Master Confirmation (including, without limitation, any Forward Price Reduction Dates and related Forward Price Reduction Amounts, any Discount to the Initial Forward Price and the amount, timing, record dates and ex-dividend dates of any planned dividends or distributions). Subject to the terms and conditions hereof, when acting as sales agent, the Agent shall use its commercially reasonable efforts to sell for the Forward Purchaser or its affiliate (in the case of a Forward Sale) or for the Company (in the case of a Direct Sale) all of the Shares so designated by the Company and in the manner contemplated by the General Disclosure Package. The Company, the Forward Purchaser and the Agent each acknowledges and agrees that (A) there can be no assurance that the Agent will be successful in selling the Shares, (B) the Agent will incur no liability or obligation to the Company, the Forward Purchaser or any other person or entity if it does not sell Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement, and (C) the Agent shall be under no obligation to purchase Shares on a principal basis, except as expressly agreed by the Agent in a Terms Agreement.
(c) Notwithstanding the foregoing, the Company shall not authorize the sale of, and the Agent shall not be obligated to use its commercially reasonable efforts to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time or
(ii) having an amount aggregate offering price in excess of the amount aggregate offering price of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company Company’s board of directors, or a duly authorized committee thereof, and mutually agreed by the Manager. Subject notified to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined Agent in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionwriting. In addition, the Company or the Manager Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailtelecopy or email, which confirmation will be promptly acknowledged), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there notice. Under no circumstances shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales aggregate offering price of any Shares sold pursuant to this Section 3(a)Agreement and the Additional Equity Distribution Agreements exceed the Maximum Program Amount or the aggregate offering price of Common Stock available for sale under the currently effective Registration Statement. The remaining proceedsNotwithstanding any of the provisions of this Agreement, after further deduction for if in the event of any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth Forward Sale either (i) the Forward Purchaser or its affiliate is unable to borrow and deliver any Shares for sale under this Agreement or (ii) in the sole judgment of the Forward Purchaser or its affiliate, it is either impracticable to do so or the Forward Purchaser or its affiliate would incur a stock loan cost that is equal to or greater than 75 basis points per annum to do so, then the Agent shall only be required to sell on behalf of the Forward Purchaser or its affiliate the aggregate number of Shares sold on such day, (ii) that the Net Proceeds to the CompanyForward Purchaser or its affiliate is able to, and (iii) the compensation payable by the Company to the Manager with respect to that it is practicable to, so borrow below such salescost.
(vid) Settlement for The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares pursuant to this Section 3(a) will occur on Agreement or the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares Additional Equity Distribution Agreements shall be effected by free delivery or through only one of the Shares by Agent or the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares Additional Agents on any Settlement Datesingle day, but in no event by more than one, and the Company shall (A) indemnify and hold in no event request that the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company Agent and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to Additional Agents sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofsame day.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 1 contract
Samples: Equity Distribution Agreement (Affiliated Managers Group, Inc.)
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principalagent, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement orby the Company’s Board of Directors, together with all sales of Shares under this Agreement or a duly authorized committee thereof, and notified to the Alternative Distribution Agreements, Manager by electronic mail substantially in an amount in excess of the Maximum Numberform attached hereto as Exhibit 3(a)(i)), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”Offering (as defined below), including including, without limitation limitation, sales made directly by means of ordinary brokers’ transactions on the NYSE, on any other existing trading market for the Shares to or through a market makermaker at market prices prevailing at the time of sale, at prices related to prevailing market prices or directly at negotiated prices. Subject to any customer or client the terms and conditions of this Section 3(a), the Manager shall use its commercially reasonable efforts to offer and sell all of the Manager. The Shares designated; provided, however, that the Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation, in the event that an offer or sale of the Shares on behalf of the Company may also sell Shares in the reasonable judgment of the Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes that it may be deemed to be an “underwriter” under the Act in a transaction that is other than by any other method permitted by law, including but not limited means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in privately negotiated transactionsaccordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(n), 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w4(q) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of the Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on in which the Shares are sold pursuant to this Section 3(a) setting forth (i) the number amount of the Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o4(n) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiii) Notwithstanding anything If the Company wishes to issue and sell the Shares other than as set forth in Section 3(a) hereof (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Company and the Manager will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate gross sales proceeds of the Shares sold pursuant to this Agreement exceed the lesser of (A) the amount set forth in Section 1 hereof and (B) the amount available for offer and sale under the currently effective Registration Statement nor shall the aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized to be issued and sold from time to time under this Agreement by the Company’s Board of Directors, or a duly authorized committee thereof, and notified to the contrary hereinManager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party, and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares through or to the Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Manager, sales effected pursuant to this Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act (each such date, a “Filing Date”) and ends, for all periods, on the earlier of (i) the date that directors and officers are no longer permitted to effect transactions in securities of the Company pursuant to the Company’s policy on ixxxxxx xxxxxxx as in effect from time to time and (ii) the end of the quarter in which the applicable Filing Date occurs. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Manager, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not sell be obligated to sell, during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(1f) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of The Company acknowledges and agrees that (i) $25.00 plus any accrued and unpaid dividends per share tothere can be no assurance that the Manager will be successful in selling the Shares, but excluding, the date of sale and (ii) 1.005; the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (biii) the Manager shall be under no obligation to purchase Shares on October 5a principal basis pursuant to this Agreement unless a Terms Agreement, 2020 in form and thereaftersubstance mutually satisfactory to the Company and Manager, $25.00 plus shall have been executed by the Company and the Manager.
(g) The Company agrees that any accrued and unpaid dividends per share tooffer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through only one of the Manager or the Alternative Manager on any single given day, but excludingin no event by both, and the date of saleCompany shall in no event request that the Manager and the Alternative Manager sell Shares on the same day.
Appears in 1 contract
Samples: Equity Distribution Agreement (Education Realty Trust, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, Agent acting as sales agent and/or principaland the Agent agrees to use its commercially reasonable efforts to sell as sales agent for the Company, the Shares. The Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company other than (A) by means of ordinary brokers’ transactions that qualify for delivery of a Prospectus to NASDAQ in accordance with Rule 153 under the 1933 Act (such transactions are hereinafter referred to as “At the Market Offerings”) and when it provides instructions, (B) such other sales of the Shares on behalf of the Company in its discretion, for capacity as agent of the Company as shall be agreed by the Company and the Agent. The Agent covenants and agrees that it shall not engage in a sale of Shares on the Company's behalf that would constitute the sale of a "block" under Rule 10b-18(a)(5) under the SharesExchange Act or a "distribution" within the meaning of Rule 100 of Regulation M under the Exchange Act without the Company's prior written consent. Subject to the previous sentence, the Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is not an At the Market Offering and the Company consents to such sale, the Company will provide to the Agent, at the Agent’s request and upon reasonable advance notice to the Company, on or prior to the Settlement Date (as defined below) for such transaction, the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 hereof, each dated the Settlement Date, and such other documents and information as the Agent shall reasonably request. Solely with respect to such sales that would constitute a "block" or a "distribution," the Agent shall use commercially reasonable efforts to assist the Company in obtaining performance of its obligations by each purchaser whose offer to purchase Shares has been solicited by the Agent and accepted by the Company. Each time that the Company wishes to issue and sell Shares hereunder (each, a “Placement”), it will notify the Agent by email notice (or other method mutually agreed to in writing by the parties) containing the parameters in accordance with which it desires Shares to be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Schedule I. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule II (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Agent set forth on Schedule II, as such Schedule II may be amended from time to time. If the Agent wishes to accept such proposed terms included in the Placement Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same Business Day on which such Placement Notice is delivered to the Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Agent set forth on Schedule II) accepting such terms (the "Agent Acceptance") or setting forth the terms that the Agent is willing to accept. Where the terms provided in the Placement Notice are proposed to be modified as provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Agent until the Company delivers to the Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the "Acceptance"), which email or other communication shall be addressed to all of the individuals from the Company and the Agent set forth on Schedule II and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Agent, on the same Business Day. The Placement Notice shall be effective upon receipt by the Company of the Agent Acceptance or, if modified as provided above, upon receipt by the Agent of the Company Acceptance, as the case may be, unless and until (i) the entire amount of the Shares covered by the Acceptance have been sold, (ii) in accordance with the notice requirements set forth in Section 4(c), the Company suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) the Agreement has been terminated under the provisions of Section 9. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement unless and until the Company delivers a Placement Notice to the Agent and there occurs with respect thereto either (i) an Agent Acceptance or (ii) a Company Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the relevant Acceptance and herein. In the event of a conflict between the terms of this Agreement and the terms of an Acceptance, the terms of the Acceptance will control. Subject to the terms and conditions hereof, upon the existence of an Acceptance, the Agent shall use its commercially reasonable efforts to sell as sales agent Shares designated in the Acceptance up to the amount specified, and otherwise in accordance with the terms of such Acceptance. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling Shares and (B) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
(b) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Manager agrees Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, as sales agent for the Company, the any Shares on the following terms.
(i) The Shares are at a price lower than the minimum price therefor authorized from time to be sold on a daily basis time, or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (Aii) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makerBoard, or directly to any customer or client of a duly authorized committee thereof, and as set forth in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionapplicable Acceptance. In addition, the Company or the Manager Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering telecopy or email to all of the individuals of the other party set forth on Schedule II, which confirmation will be promptly acknowledged by the receiving party) suspend or refuse to undertake any sale of Shares designated in such Acceptance for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice. Each of the parties hereto agrees that no such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) effective against the other unless it originates from an individual named on Schedule II and 4(w) with respect is made to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination individuals of the Suspension Periodother party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time.
(iiic) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on NASDAQ or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be equal to 2% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vd) If acting as sales agent hereunder, the Manager The Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE NASDAQ each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales. For the avoidance of doubt, such written confirmation will be provided to the Company no later than the opening of trading on the immediately following trading day on NASDAQ.
(vie) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in Section 1 of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement, the KeyBanc Agreement and the RBC Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s Board, or a duly authorized committee thereof, and notified to the Agent in writing as set forth in the applicable Placement Notice. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Agent shall calculate and provide in writing to the Company, on a monthly basis, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(f) Settlement for sales of Shares pursuant to this Section 3(a) 4 and made in accordance with the terms of the applicable Acceptance will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day for NASDAQ (other than a day on the NYSE which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the sale of Agent for settlement on such Shares date shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon against payments by the parties hereto, which Agent of the Net Proceeds from the sale of such Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable formsame day funds delivered to an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viig) At each Time of SaleApplicable Time, each Settlement Date and each Representation Date (each, as such term is defined in Section 2(b), Section 3(a)(vi6(n) and Section 4(o) hereof, respectivelyherein), the Company Company, the Adviser and the Operating Partnership Administrator shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any The obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof4 of this Agreement.
(viiih) Notwithstanding anything The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Common Stock or any other equity security of the contrary hereinCompany pursuant to this Agreement shall only be effected by or through only one of Agent, KeyBanc or RBC on any single given day, but in no event by more than one of them, and the Manager Company shall not in no event request that more than one of Agent, KeyBanc or RBC sell (1) Series A Preferred Shares at a price higher than shares of Common Stock on the Series A Maximum Price. For the purposes hereofsame day; provided, the “Series A Maximum Price” shall mean: (a) through October 4however, 2020, the product of that (i) $25.00 plus any accrued and unpaid dividends per share to, but excludingthe foregoing limitation shall not apply to sales solely to employees of the Company, the date Adviser, the Administrator or their respective affiliates, or to a trustee or other person acquiring such securities for the accounts of sale such persons and (ii) 1.005; such limitation shall not apply on any day during which no sales are made pursuant to this Agreement.
(i) Except as may be mutually agreed by the Company and the Agent the Company and the Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, (i) with respect to the Company’s quarterly filings on Form 10-Q, during any period commencing upon the 30th day following the end of each fiscal quarter and ending on the date on which the Company files with the Commission a Prospectus Supplement under Rule 497 relating to the Shares that includes updated financial information as of the end of the Company’s most recent quarterly period (the “10-Q Filing”) and (bii) with respect to the Company’s annual report filings on October 5Form 10-K, 2020 during any period commencing upon the 50th day following the end of the Company’s fiscal year and thereafterending on the date on which the Company files with the Commission a Prospectus Supplement under Rule 497 relating to the Shares that includes updated audited financial information as of the end of the Company’s most recent fiscal year (the “10-K Filing”) (each of a 10-Q Filing and/or a 10-K Filing shall also be referred to herein as a “Quarterly 497 Filing”). To the extent the Company releases its earnings for its most recent quarterly period or fiscal year, $25.00 plus any accrued as applicable (an “Earnings Release”) before it files with the Commission its quarterly report on Form 10-Q for such quarterly period or annual repot on Form 10-K for such fiscal year, as applicable, then the Agent and unpaid dividends per share to, but excluding, the Company agree that no sales of Shares shall take place for the period beginning on the date of salethe Earnings Release and ending on the date of the applicable Quarterly 497 Filing. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Agent, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is in possession of material non-public information.
Appears in 1 contract
Samples: Equity Distribution Agreement (Prospect Capital Corp)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but and subject to the terms and conditions herein set forth, the Company agrees to issue and sell through or to the ManagerManagers, as sales agent agents and/or principalprincipals, as and when it provides instructions, in its discretion, for the sale of the Shares, and the each Manager agrees to use its commercially reasonable efforts efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold by one of the Managers on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager Managers on any day that (A) is a trading day for the NYSE NASDAQ (other than a day on which the NYSE NASDAQ is scheduled to close prior to its regular weekday closing time) (each, a “Trading Day”), on which (BA) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto hereto, as such Schedule B may be amended from time to time (the “Authorized Company Representatives”), has instructed such Manager (with notice of such instruction to each of the Manager by telephone (confirmed promptly by electronic mailother Authorized Representatives at such time) to make such sales of Shares and (CB) the Company has satisfied its obligations under Section Sections 4, 5 and 6 hereof. The On a Trading Day that the Company wishes to sell the Shares, the Company may sell the Shares through only one Manager and, if it determines to do so in its discretion, the Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”Exhibit 3(a)(i) the maximum number amount of the Shares to be sold by the such Manager daily as agreed to by the such Manager (in any event the Company shall not instruct such Manager to sell Shares in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of the Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number)Agreement, any minimum price below which sales of the Shares may not be effected effected) and any other limitations specified by the Company and mutually agreed by such Manager. On any Trading Day, the Company shall give at least one business day’s prior notice (confirmed promptly by electronic mail) to the relevant Manager as to any change of the Manager through whom sales of the Shares as sales agent will be made. The Manager through whom sales of the Shares as sales agent are then being made pursuant to this Section 3(a) is referred to as the “Selling Manager”. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or other security holders of the Company Parties or to a trustee or other person acquiring the Shares for the accounts of such persons in which RBCCM, Xxxxxxx Xxxxx, Citi or JPM is acting for the Company in a capacity other than as Manager under this Agreement. Subject to the terms and conditions of this Section 3(a), the Manager Managers may sell the Shares by any method permitted by law deemed to be an “at the marketmarket offering” offering as defined in Rule 415 under the Act (an “At the Market Offering”)Act, including including, without limitation limitation, sales made directly on the NYSEby means of ordinary brokers’ transactions, on any other existing trading market for the Shares to or through a market makermaker at market prices prevailing at the time of sale, at prices related to prevailing market prices or directly at negotiated prices (such transactions are hereinafter referred to any customer or client as “At the Market Offerings”). Subject to the terms and conditions of this Section 3(a) and the other terms and conditions specified herein (including, without limitation, the accuracy of the Manager. The representations and warranties of the Company and the performance by the Company of its covenants and other obligations contained herein and the satisfaction of the additional conditions specified in Section 6 hereof), the applicable Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Managers shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Managers shall have no such obligation, in the event that an offer or sale of the Shares on behalf of the Company may also sell Shares in the reasonable judgment of a Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or such Manager reasonably believes that it may be deemed to be an “underwriter” under the Act in a transaction that is other than by any other method permitted by law, including but not limited means of ordinary brokers’ transactions between members of the NASDAQ that qualify for delivery of a Prospectus to the NASDAQ in privately negotiated transactionsaccordance with Rule 153 under the Act.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone Managers (confirmed promptly by electronic mail) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the any Manager may, upon notice to the other party parties hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(n), 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w4(q) with respect to the delivery of certificates, opinions, or comfort letters to the Manager Managers during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager Each of the Managers hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the such Manager.
(iv) The compensation to the each Manager, as an agent of the Company, for sales of the Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the each Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE NASDAQ each day on in which the Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the such Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a) (i) prior to September 5, 2017, will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE NASDAQ following the date on which such sales are made and (ii) on or after September 5, 2017, will occur on the second business day that is also a trading day on the NASDAQ following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through a Manager for settlement on such date shall be issued and delivered by the Company to such Manager against payment of the Net Proceeds from Proceeds, or, at such Manager’s election, the gross proceeds, for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the such Manager’s account, or to the account of the such Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares units in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. In the event that the relevant Manager delivers the gross proceeds of a given sale of Shares to the Company on a Settlement Date, the compensation payable to such Manager for such sale shall be set forth and invoiced in a periodic statement from the Manager to the Company and payment of such compensation shall be made promptly by the Company as directed by such Manager after the Company’s receipt of such periodic statement. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, in addition to and in no way limiting the rights and obligations set forth in Section 7(a) hereof, the Company shall (A) indemnify and hold the such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the such Manager any commission to which it would otherwise be entitled absent such default. The Any Authorized Company Representatives Representative shall be the a permissible contact persons person for the Company for all matters related to the settlement of the transfer of the Shares through DWAC DTC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the any Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiib) Notwithstanding anything If the Company wishes to issue and sell the Shares other than as set forth in Section 3(a) hereof, it will notify a Manager of the proposed terms of such issuance and sale (each, a “Placement”). If such Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Company and such Manager will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(c) Under no circumstances shall the aggregate gross proceeds of the Shares sold pursuant to this Agreement exceed the lesser of (A) the amount set forth in Section 1 hereof and (B) the amount available for offer and sale under the Registration Statement, nor shall the aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized to be issued and sold from time to time under this Agreement by the Board of Directors of the Company, or a duly authorized committee thereof, and notified to the contrary hereinManagers in writing. The Managers shall have no responsibility for maintaining records with respect to Shares available for sale under the Registration Statement or for determining the aggregate gross proceeds, number or minimum price of Shares duly authorized by the Company.
(d) Each sale of the Shares through or to any Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement. The applicable Manager’s commitment, if any, to purchase Shares from the Company as principal shall be deemed to have been made on the basis of the accuracy of the representations and warranties of the Company, and performance by the Company of its covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth. At the time of each Terms Agreement, the applicable Manager shall specify the requirements, if any, for the officers’ certificate, opinions and letters of counsel and comfort letters pursuant to Section 4(n), (o) and (q), respectively, hereof.
(e) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Managers, sales effected pursuant to this Agreement may not sell (1) Series A Preferred Shares at a price higher than be requested by the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of Company and need not be made by any Manager (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, during the 14 calendar days prior to the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of sale and operations (each, an “Earnings Announcement”), (ii) 1.005; at any time from and including an Announcement Date through and including the later to occur of (A) the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement, and (bB) the applicable Bring-Down Delivery Date of the Company referenced in Section 4(n) below, or (iii) during any other period in which the Company is, or could be deemed to be, in possession of material non-public information.
(f) The Company acknowledges and agrees that (i) there can be no assurance that any Manager will be successful in selling the Shares, (ii) no Manager will incur liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by such Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (iii) no Manager shall be under any obligation to purchase Shares on October 5a principal basis pursuant to this Agreement except as otherwise specifically agreed by such Manager and the Company pursuant to a Terms Agreement.
(g) If any of the Company or the Managers has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, 2020 it shall promptly notify the other parties, and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, sales of the date Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of saleeach party.
Appears in 1 contract
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by Each time that the Company wishes to issue and the Manager sell Shares on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time) pursuant to this Agreement (each, a “Placement”), (B) it will instruct the Company, through any Manager by telephone of the individuals listed parameters in accordance with which it desires Shares to be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, the minimum price below which sales may not be made and any limitation on the number of Shares that may be sold in any one day (a “Placement Notice”). The Manager will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same business day (as defined below) on which such Placement Notice is delivered to the Manager, issue to the Company a notice by email addressed to all of the authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”)) confirming all of the parameters of the Placement. The Placement Notice shall be effective upon receipt by any of the Authorized Company Representatives of the email notice from the Manager, has instructed unless and until (i) the Manager entire amount of the Shares covered by telephone the Placement Notice have been sold, (confirmed promptly by electronic mailii) to make sales of Shares and in accordance with Section 3(a)(ii) hereof, the Company suspends or terminates the Placement Notice, (Ciii) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in issues a notice delivered by electronic mail to subsequent Placement Notice with parameters superseding those on the Manager substantially in the form attached hereto as Schedule C (a “earlier dated Placement Notice”, or (iv) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance this Agreement has been terminated under the Prospectus and the Registration Statement or in an amount in excess provisions of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the ManagerSection 9. Subject to the terms and conditions of this Section 3(a)hereof, the Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated in the Placement Notice; provided, however, that the Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation in the event an offer or sale of the Shares on behalf of the Company may sell Shares by any method permitted by law in the judgment of the Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed to be an “at the marketunderwriter” offering as defined in Rule 415 under the 1933 Act in a transaction that is other than (A) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the 1933 Act or (B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the transactions described in (A) and (B) are hereinafter referred to as “At the Market OfferingOfferings”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailmail from such party), suspend the offering of the Shares for pursuant to this Agreement or suspend or terminate a specified period (a “Suspension Period”)previously issued Placement Notice; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of the Shares shall be at a mutually agreed rate, not up to exceed 2.01.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant applicable time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number aggregate amount of the Shares sold on such day, (ii) the aggregate Net Proceeds to the Company, and (iii) the aggregate compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on (i) for sales prior to September 2, 2017, the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE third Trading Day following the date on which such sales are made made, unless another date shall be agreed upon by the Company and the Manager, or (ii) for sales on or after September 2, 2017, the second Trading Day following the date on which such sales are made, unless another date shall be agreed upon by the Company and the Manager (in each case, provided that, if such Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day) (each such date, a “Settlement Date”). As used herein, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of electronically transferring the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties heretoCompany and the Manager, which in all cases shall be freely tradable, transferable, registered shares eligible for delivery through DTC, in good deliverable formreturn for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o4(q) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation its representations and warranty warranties contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership hereinCompany, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof5 of this Agreement.
(viiii) Notwithstanding anything If the Company wishes to issue and sell the Shares other than as set forth in Section 3(a) of this Agreement or as set forth in Section 3(a) of any Alternative Equity Distribution Agreement, it may elect, in its sole discretion, to notify the Manager of the proposed terms of such sale. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. For avoidance of doubt, nothing contained in this Agreement shall be construed to require the Company to engage the Manager or any Alternative Managers in connection with the offer and sale of any of the Company’s securities, including shares of the Common Stock, whether in connection with an underwriting offering or otherwise.
(c) In the event the Company engages the Manager for a sale of Shares that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act, the Company and the Manager will agree to compensation that is customary for the Manager with respect to such transactions.
(d) (i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the contrary hereinsale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement and any Alternative Equity Distribution Agreement would exceed the lesser of (A) the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement and any Alternative Equity Distribution Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares (i) at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and notified to the Manager in writing and (ii) at a price (net of the Manager’s commission, discount or other compensation for such sales payable by the Company pursuant to this Section 4) lower than the Company’s then current net asset value per share (as calculated pursuant to the 1940 Act), unless the Company has received the requisite approval from the Company’s board of directors or a duly authorized committee thereof, and notifies the Manager in writing.
(ii) If any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other parties and sales of the Shares under this Agreement and any Alternative Equity Distribution Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Manager (which such request may be by electronic mail), the Manager shall not sell (1) Series A Preferred Shares at promptly calculate and provide in writing to the Company a price higher than report setting forth, for the Series A Maximum Price. For the purposes hereofprior week, the “Series A Maximum Price” average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(e) Each sale of the Shares to or through the Manager or any Alternative Manager, as applicable, shall mean: (a) through October 4be made in accordance with the terms of this Agreement or, 2020if applicable, a Terms Agreement, or the respective Alternative Equity Distribution Agreement or, if applicable, an Alternative Terms Agreement, as applicable. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the product price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, any provisions relating to the granting of an option to purchase additional Shares for the purpose of covering over-allotments, and the time and date (ieach such time and date being referred to herein as a “Time of Delivery”) $25.00 plus and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any accrued requirements for opinions of counsel, accountants’ letters and unpaid dividends per share to, but excluding, officers’ certificates pursuant to Section 5 hereof and any other information or documents required by the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Main Street Capital CORP)
Sale and Delivery of Shares. (a) On the basis The Company’s board of directors has delegated to certain officers of the representationsCompany, warranties which are listed as authorized representatives of the Company on Schedule 1 hereto (the Authorized Company Representatives), the authority to negotiate the terms and agreements herein contained, but subject conditions of any such sale of the Shares.
(b) Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the ManagerAgent, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the such Shares on the following terms.
(i) as agreed upon herein. The Shares are to may be offered and sold on a daily basis or otherwise as shall be mutually in (1) privately negotiated transactions (if and only if the parties hereto have so agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing timein writing), or (B2) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method or payment permitted by law deemed to be an “at the market” offering as defined in Rule 415 under of the Act (an “At the Market Offering”)Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for New York Stock Exchange (the Shares Exchange) or sales made to or through a market makermaker or through an electronic communications network. Nothing in this Agreement shall be deemed to require either party to agree to the method of offer and sale specified in clause (1) above, or directly to any customer or client of the Manager. The Manager and either party may also sell Shares by any other method permitted by law, including but not limited to withhold its consent thereto in privately negotiated transactionssuch party’s sole discretion.
(iic) The Shares that may be sold pursuant to this Agreement are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Agent on any trading day (other than a day on which the Exchange is scheduled to close prior to its regular weekday closing time) (each, a Trading Day) that the Company has instructed the Agent through an Authorized Company Representative to make such sales. On any Trading Day, the Company may instruct the Agent by telephone (confirmed promptly by delivery of a sale instruction substantially in the form of Schedule 2 (a Sale Instruction) by fascimile or email, which Sale Instruction will be promptly acknowledged by the Agent) as to the maximum number of Shares to be sold by the Agent on such Trading Day (in any event not in excess of the number available for issuance under the Prospectus and the currently effective Registration Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Agent shall use its commercially reasonable efforts to sell all of the Shares so designated by the Company.
(d) Notwithstanding the foregoing, the CompanyCompany shall not instruct the Agent to sell, through and the Agent shall not be obligated to use its commercially reasonable efforts to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement, in each case, by the Company’s board of directors, a duly authorized committee thereof or an Authorized Company RepresentativesRepresentative, may instruct and notified to the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company Agent in any such instructionwriting. In addition, the Company or the Manager Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailfacsimile or email, which confirmation will be promptly acknowledged by the Company or Agent, as applicable), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice notice.
(e) Under no circumstances shall the aggregate offering price of Shares sold pursuant to this Agreement and providedthe Alternative Sales Agency Agreements exceed the aggregate offering price of Shares of Common Stock (i) set forth in the preamble paragraph of this Agreement, further(ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, a duly authorized committee thereof or an Authorized Company Representative, and notified to the Agent in writing. In addition, under no circumstances shall any Shares be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s board of directors, a duly authorized committee thereof or an Authorized Company Representative, and notified to the Agent in writing.
(f) If either party believes that there shall be no obligations the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under Sections 4(o), 4(p), 4(q), 4(r), 4(sthe Securities Exchange Act (applicable to securities with an average daily trading volume of $1,000,000 that are issued by an issuer whose common equity securities have a public float value of at least $150,000,000) and 4(w) are not satisfied with respect to the delivery Company or the Common Stock, it shall promptly notify the other party and sales of certificates, opinions, Shares under this Agreement shall be suspended until that or comfort letters to other exemptive provisions have been satisfied in the Manager during a Suspension Period and that such obligations shall recommence on the termination judgment of the Suspension Periodeach party.
(iiig) The Manager hereby covenants and agrees not to make gross sales price of any sales of Shares on behalf sold under this Agreement shall be the actual execution price of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon sold by the Company and the Manager.
(iv) Agent under this Agreement. The compensation payable to the Manager, as an agent of the Company, Agent for sales of Shares sold by the Agent under this Agreement shall be at a mutually agreed rate, not equal to exceed 2.0% of the gross sales price of any the Shares for amounts of Shares sold by the Agent pursuant to this Section 3(a)Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vh) If acting as sales agent hereunder, the Manager The Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Exchange each day on in which Shares are sold pursuant to by the Agent under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the gross sales prices of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales.
(vii) Settlement for sales of the Shares sold by the Agent pursuant to this Section 3(a) Agreement will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE third Trading Day following the date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be issued and delivered by the Company to the Agent against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the ManagerAgent’s account, or to the account of the ManagerAgent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares Shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The individuals listed on Schedule 3 to this Agreement and any replacement or additional individuals identified to the Agent in writing by an Authorized Company Representatives Representative shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)Section.
(viij) At each Time Notwithstanding any other provision contained herein, if subsequent to a sale of Sale, the Shares and prior to the related Settlement Date there shall have occurred:
(i) any general suspension of trading in securities on the Exchange or any limitation on prices for such trading or any restrictions on the distribution of securities established by the Exchange or by the Commission or by any federal or state agency or by the decision of any court,
(ii) a suspension of trading of any securities of the Company on the Exchange,
(iii) a banking moratorium declared either by federal or New York State authorities or
(iv) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by the United States Congress or any other substantial national or international calamity or crisis resulting in the declaration of a national emergency, or any material adverse change in the financial markets, provided that (1) the effect of such outbreak, escalation, declaration, calamity, crisis or material adverse change shall, in the reasonable judgment of the Agent, make it impracticable to proceed with the delivery of the Shares on the terms and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)the manner contemplated in the Disclosure Package, the Company Prospectus and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation , and (2) the Agent so notifies the Company, then, (W) the Agent shall not be required to deliver the applicable Net Proceeds on any Settlement Date for such Shares, (X) the Agent shall return to the Company Shares, if any, delivered to it by the Company for settlement of such sale, (Y) the Manager Company shall not be required to use its commercially reasonable efforts deliver such Shares for settlement of such sale and (Z) the Company shall not be required to sell pay the Agent any commission in connection with such sale.
(k) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares on behalf or any other equity security of the Company shall only be subject to the continuing accuracy effected by or through only one of the representations Agent or the Alternative Agents on any single given day, but in no event by more than one, and warranties of the Company shall in no event request that the Agent and any other Alternative Agent sell Shares on the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofsame day.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 1 contract
Samples: Sales Agency Agreement (Dominion Resources Capital Trust Iv)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, up to the Maximum Amount of Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)NYSE, (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement; provided, however, that for so long as the Common Shares are not “actively-traded securities” exempt from the requirements of Rule 101 of Regulation M under the Exchange Act, then the Company shall provide the Manager prior written notice of its intent to sell Shares to enable the Manager to comply with the Regulation M requirements. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager (daily or otherwise) as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus Maximum Amount of Shares) and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Manager shall use its reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for the Common Shares sold by the Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on the NYSE at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.
(iii) The Company shall not authorize the issuance and sale of, through any of the Authorized Company Representatives, may instruct and the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales canshall not be effected obligated to use its reasonable efforts to sell, any Share at or above a price lower than the minimum price therefor designated from time to time by the Company Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Manager in any such instructionwriting. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified any reason and at any time, and the obligations of the Company contained in Sections 4(k), 4(l), 4(m), 4(o) and 4(p) of this Agreement shall be deferred for any period that the Company has suspended the offering of Shares pursuant to this Section 3(a)(iii) (each, a “Suspension Period”)) and shall recommence upon the termination of such suspension; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiiv) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings ordinary brokers’ transactions, and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company or as principal as shall be mutually agreed upon by the Company and the ManagerManager in writing.
(ivv) The compensation to the Manager, as an agent of the Company, Manager for sales of the Shares with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, not to exceed 2.02.00% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, proceeds shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Chief Financial Officer of the Company (xxxxxx@xxxx.xxx), the Treasury of the Company (xxxxxxxx@xxxx.xxx) and the Assistant Corporate Secretary of the Company (xxxxxxxxxxxx@xxxx.xxx) following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the CompanyProceeds, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means in return for payments in same day funds delivered to an account in favor of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany maintained at Key Bank National Association. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi4(k) and Section 4(o) hereof, respectivelyof this Agreement), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. Except as expressly provided in this Agreement, the sale by the Company of any securities other than the Shares shall not be subject to the terms of this Agreement.
(c) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(d) Under no circumstances shall the gross sales price of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) the aggregate gross sales price set forth in Section 1 of this Agreement, (ii) the number or the aggregate gross sales price of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing, or (iii) the aggregate gross sales price of the Shares authorized by the PSB. Under no circumstances shall the number of Shares sold pursuant to this Agreement and any Terms Agreement exceed the Maximum Amount of Shares.
(e) Notwithstanding anything to any other provision of this Agreement, the contrary hereinCompany agrees that no sales of Shares shall take place, and the Company shall not request the sale of any Shares, and the Manager shall not sell (1) Series A Preferred Shares at a price higher than be obligated to sell, during any period in which the Series A Maximum Price. For Company is, or could be deemed to be, in possession of material non-public information; provided that, notwithstanding the purposes hereofprovisions of this Section 3(e), the “Series A Maximum Price” Company agrees that no sales of Shares shall mean: take place during the twenty (a20) through October 4, 2020, the product of calendar days prior to an Earnings Release (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleas defined below).
Appears in 1 contract
Samples: Equity Distribution Agreement (Central Vermont Public Service Corp)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company will issue and agrees to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.:
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE The NASDAQ Capital Market (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Trading Market”), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Manager shall use its reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Stock sold by the Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on the Trading Market at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company pursuant to a Terms Agreement.
(iii) The Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors (the “Board”), through any of the Authorized Company Representativesor a duly authorized committee thereof, may instruct and notified to the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionwriting. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Managernotice.
(iv) The Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the Trading Market on any other existing trading market for the Common Stock or to or through a market maker. The Manager may also sell Shares in privately negotiated transactions.
(v) The compensation to the Manager, as an agent of the Company, Manager for sales of the Shares with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares per Share sold pursuant to this Section 3(a). The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE Trading Market each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day at 10:00 a.m. (Eastern Time), or at such earlier day time as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day Manager may mutually agree, on the NYSE third business day following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon via the DWAC system, in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be If the contact persons Manager breaches this Agreement by failing to deliver the Net Proceeds on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related to interest based on the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)effective overnight federal funds rate.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Date, Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Filing Date (as defined below in Section 4(o) hereof, respectively4(w), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) Notwithstanding anything If the Company wishes to sell the contrary hereinShares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Manager shall and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not sell (1) Series A Preferred Shares at be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a price higher than conflict between the Series A Maximum Price. For terms of this Agreement and the purposes hereofterms of a Terms Agreement, the “Series A Maximum Price” terms of such Terms Agreement will control.
(c) Each sale of the Shares to the Manager shall mean: (a) through October 4be made in accordance with the terms of this Agreement and, 2020if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the product Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(d) Under no circumstances shall the number and aggregate amount of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) $25.00 plus any accrued and unpaid dividends per share tothe aggregate amount set forth in Section 1, but excluding, the date of sale and (ii) 1.005; the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing.
(be) on October 5If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, 2020 it shall promptly notify the other party and thereafter, $25.00 plus sales of the Shares under this Agreement and any accrued and unpaid dividends per share to, but excluding, Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the date judgment of saleeach party.
Appears in 1 contract
Samples: Continuous Offering Program Agreement (Oculus Innovative Sciences, Inc.)
Sale and Delivery of Shares. (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 (1) to issue and sell through or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts consistent with its normal trading and sales practice to sell, as sales agent for the Company, the Shares, and (2) in consultation with the Forward Purchaser and the Manager, to instruct the Forward Purchaser to borrow, offer and sell Shares through the Manager, as forward seller, in each case on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations covenants and conditions under Section 4 and Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum NumberAmount, or in excess of the number of Shares approved for listing on the NYSE), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Such instruction shall also specify whether such Shares (i) will be sold through the Manager, as sales agent or principal, in accordance with clause 3(a)(1) above, or (ii) borrowed by the Forward Purchaser and sold through the Manager, as forward seller, in connection with hedging a forward stock purchase transaction pursuant to any Confirmations in accordance with clause 3(a)(2) above. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “At the Market Offering (as defined below), including, without limitation, sales made by means of ordinary brokers’ transactions on the NYSE, to or through a market maker at market prices prevailing at the markettime of sale, at prices related to prevailing market prices or at negotiated prices. Subject to the terms and conditions specified herein (including, without limitation, the accuracy of the representations and warranties of each of the Company and the Operating Partnership and the performance by the Company and the Operating Partnership of their respective covenants and other obligations, contained herein and the satisfaction of the additional conditions specified in Section 6 hereof), the Manager shall use its commercially reasonable efforts consistent with its normal trading and sales practice to offer and sell as sales agent all of the Shares designated; provided, however, that the Company acknowledges and agrees that neither the Manager nor the Forward Purchaser, as applicable, shall have any obligation to borrow, offer or sell any Shares in the event that a borrowing, offer or sale of the Shares on behalf of the Company or the Forward Purchaser may in the reasonable judgment of the Manager constitute the sale of a “block” offering as defined under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes that it may be deemed to be an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus in accordance with Rule 415 153 under the Act (such transactions are hereinafter referred to individually as an “At the Market Offering” and collectively as the “At the Market Offerings”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder sold, or with respect to Shares that the Company has agreed to sell or the Forward Purchaser has agreed to borrow and deliver pursuant to this Agreement, any Confirmation or Terms Agreement prior to the giving of such notice and providednotice, and, provided further, that there shall be no obligations under Sections 4(n), 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w4(q) with respect to the delivery of certificates, opinions, or comfort letters to the Manager and the Forward Purchaser during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Each of the Manager and the Forward Purchaser, as applicable, hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The In connection with sales pursuant to Section 3(a)(1) of this Agreement, the compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). In connection with sales pursuant to Section 3(a)(2) of this Agreement, the compensation payable to the Manager for sales of Shares with respect to which the Manager acts as forward seller shall be reflected in a reduction of an amount not to exceed 2.0% of the Initial Forward Price (as such term is defined in each applicable Confirmation). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company or the Forward Purchaser, as applicable, from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the aggregate Net Proceeds to the CompanyCompany or the Forward Purchaser, as applicable, and (iii) the aggregate compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made made, unless another date shall be agreed to in writing by the Company and the Manager. On each date of settlement for the sale of Shares through the Manager as sales agent pursuant to Section 3(a)(1) hereof (each such date, a “Direct Settlement Date”). On , or through the Manager as forward seller pursuant to Section 3(a)(2) hereof (each such date, a “Forward Settlement Date” and, together with a Direct Settlement Date, a “Settlement Date”), the Net Proceeds from the sale of such Shares shall be delivered to the Company or the Forward Purchaser, as applicable, in same day funds to an account designated by the Company or the Forward Purchaser, as applicable, in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company (or its transfer agent agent) or the Forward Purchaser, as applicable, to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares through the Manager as sales agent on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o4(n) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiib) If the Company wishes to borrow or issue and sell the Shares other than as set forth in Section 3(a) hereof (each, a “Transaction”), it will notify the Manager and the Forward Purchaser, as applicable, of the proposed terms of such Transaction. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Company and the Manager will enter into a Terms Agreement or the Company and the Forward Purchaser will enter into a Confirmation, setting forth the terms of such Transaction. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement or Confirmation, as applicable, the terms of such Terms Agreement or Confirmation, as applicable, will control.
(i) Under no circumstances shall the aggregate gross sales proceeds of the Shares sold pursuant to this Agreement exceed the lesser of (A) $100,000,000 and (B) the amount available for offer and sale under the Prospectus and the Registration Statement, nor shall the aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized to be sold under this Agreement by the Company’s Board of Directors, or a duly authorized committee thereof, and notified to the Manager in writing. Further, under no circumstances shall the aggregate gross sales proceeds from Shares sold pursuant to this Agreement together with the Shares sold pursuant to the Alternative Distribution Agreement, including any separate Terms Agreement or similar agreement covering principal transactions described herein and in the Alternative Distribution Agreement, exceed the Maximum Amount.
(ii) If any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other parties hereto, and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares through or to the Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Notwithstanding anything any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale of, any Shares and, by notice to the contrary hereinManager, shall cancel any instructions for the offer or sale of any Shares, and the Manager shall not be obligated to offer or sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereofany Shares, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of during (i) $25.00 plus any accrued and unpaid dividends per share toperiod in which the Company is, but excludingor could be deemed to be, the date in possession of sale and material non-public information or (ii) 1.005; during the fourteen (14) calendar days prior to any public announcement or release disclosing the Company’s results of operations or financial condition for a completed quarterly or annual fiscal period through and including the time that is 24 hours after the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such announcement or release.
(f) The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling the Shares, (ii) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell Shares in accordance with the terms of this Agreement, and (biii) the Manager shall be under no obligation to purchase Shares on October 5a principal basis pursuant to this Agreement unless a Terms Agreement, 2020 in substantially the form attached hereto as Exhibit A, shall have been executed by the Company, the Operating Partnership and thereafterthe Manager.
(g) The Company agrees that any offer to sell, $25.00 plus any accrued solicitation of an offer to buy, or any sales of Shares shall only be effected by or through the Manager or the Alternative Manager on any single given day, but in no event by the Manager and unpaid dividends the Alternative Manager, and the Company shall in no event request that the Manager and the Alternative Manager sell Shares on the same day.
(h) As set out in Paragraph 7(f)(i) under the Confirmation and notwithstanding anything herein to the contrary, in the event that either (i) the Forward Purchaser is unable to borrow and deliver any Shares for sale under this Agreement or (ii) in the commercially reasonable judgment of the Forward Purchaser, it is either impracticable to do so or the Forward Purchaser would incur a stock loan cost that is equal to or greater than 200 basis points per share annum to do so, then the Manager shall be required to sell on behalf of the Forward Purchaser only the aggregate number of Shares that the Forward Purchaser is able to, but excludingand that it is practicable to, the date of saleso borrow below such cost.
Appears in 1 contract
Samples: Equity Distribution Agreement (Education Realty Operating Partnership L P)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell exclusively through or to an Agent (the Manager, “Designated Agent”) acting as sales agent and/or principal, or directly to an Agent acting as and when it provides instructions, in its discretion, for the sale of the Sharesprincipal from time to time, and the Manager Designated Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares Shares. Sales of the Shares, if any, through a Designated Agent acting as sales agent or directly to an Agent acting as principal may be made in negotiated transactions or transactions that are deemed to be “at the market offerings” as defined in Rule 415 under the 1933 Act, including sales made directly on the following termsNYSE, or sales made to or through a market maker other than on an exchange or through an electronic communications network.
(ib) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager Designated Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time, each, a “Trading Day”), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) that the Company has satisfied its obligations under Section 6 hereofof this Agreement and (C) that the Company has instructed an Agent to make such sales. The For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or securityholders of the Company will designate or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which such the Designated Agent is acting for the Company in a notice delivered capacity other than as the Designated Agent under this Agreement. On any Trading Day, the Company, through its Chief Executive Officer or Chief Financial Officer (each, an “Authorized Representative”), may instruct the Designated Agent by electronic mail telephone (confirmed promptly by email by any of the Authorized Representatives and shall be addressed to each of the Manager substantially in individuals from the form attached hereto Designated Agent set forth on Schedule 1 which confirmation will be promptly acknowledged by the Designated Agent) as Schedule C (a “Placement Notice”) to the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager Designated Agent on such day (in any event not in excess of the amount number available for issuance under the Prospectus and the currently effective Registration Statement Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Designated Agent shall use its commercially reasonable efforts to sell as sales agent all of the Shares so designated by the Company. The Company and the Designated Agent each acknowledge and agree that (A) there can be no assurance that the Designated Agent will be successful in selling the Shares, (B) the Designated Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Designated Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement, and (C) the Designated Agent shall be under no obligation to purchase Shares on a principal basis except as otherwise specifically agreed by either Agent and the Company pursuant to a Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Designated Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, any Shares pursuant to this Agreement (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in an amount a number in excess of the amount number or maximum aggregate dollar value of Shares, in each case, authorized from time to time to be issued and sold under this Agreement, in each case, by the Company’s board of directors, or a duly authorized committee thereof, or any individual to whom such authority has been duly and properly delegated by the Company’s board of directors or a duly authorized committee thereof, and notified to the Designated Agent in writing. The Agents shall not make any sales or offers to sell Shares before the Commencement Time. In addition, the Company may, upon notice to the Designated Agent, suspend the offering of the Shares, or the Agents may, upon notice to the Company, suspend the offering of the Shares with respect to which the Designated Agent is acting as sales agent, for any reason and at any time; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Any notice given pursuant to the preceding sentence, and the Company’s notice of the Commencement Time, may be given by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged).
(d) The gross sales price of any Shares sold pursuant to this Agreement by the Designated Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Designated Agent on the NYSE or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Designated Agent for sales of Shares with respect to which the Designated Agent acts as sales agent shall be equal to up to 3.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Section 2(d). The Company may sell Shares to an Agent, acting as principal, at a price agreed upon with such Agent at the relevant Applicable Time and pursuant to a separate Terms Agreement, in which case, for the avoidance of doubt, the foregoing rate shall not apply. The remaining proceeds after the foregoing compensation payable to the Agents and after further deduction for any transaction fees imposed by any governmental, regulatory or self-regulatory organization in respect of such sales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). Such Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. The Agents shall provide statements to the Company from time to time reflecting the gross sales price of Shares, Agent compensation and any Transaction Fees.
(e) If acting as a sales agent hereunder, the Designated Agent shall provide written confirmation to the Company following the close of trading on the NYSE, each day in which Shares are sold under this Agreement setting forth the number of Shares sold on such day, the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company and the compensation payable by the Company to such Designated Agent with respect to such sales.
(f) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement and any Terms Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in the preamble paragraph of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this or any Terms Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company Company’s board of directors, or a duly authorized committee thereof, and mutually agreed by the Manager. Subject notified to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined Designated Agent in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionwriting. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the under no circumstances shall any Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares which the Designated Agent acts as sales agent be sold hereunder prior at a price lower than the minimum price therefor authorized from time to time by the Company’s board of directors, or a duly authorized committee thereof, and notified to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension PeriodDesignated Agent in writing.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vig) Settlement for sales of Shares pursuant to this Section 3(a2(g) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) Business Day that is also a trading day on the NYSE Trading Day following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Designated Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Designated Agent for settlement on such date shall be delivered by the Company to the Designated Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Designated Agent’s account at The Depository Trust Company against payments by the Designated Agent of the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds delivered to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager Designated Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Designated Agent any commission to which it would otherwise be entitled absent such default. .
(h) The Authorized Company Representatives shall be the contact persons for the Company for all matters related Agents hereby covenant and agree not to the settlement of the transfer make any sales of the Shares through DWAC for purposes on behalf of the Company, pursuant to this Section 3(a)(vi)2, other than as shall be permitted by law and agreed upon by the Company and the Agents.
(viii) At each Time of SaleApplicable Time, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)Date, the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager Designated Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiij) Notwithstanding anything to the contrary hereinany other provision of this Agreement, the Manager Company and the Agents agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agents shall not be obligated to sell, during any period in which the Company is in possession of material non-public information. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares pursuant to this Agreement shall only be effected by or through an Agent, and only a single Agent, on any single given date, and in no event shall the Company request that more than one Agent sell (1) Series A Preferred Shares at a price higher than securities on the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salesame day.
Appears in 1 contract
Samples: At the Market Equity Distribution Agreement (W&t Offshore Inc)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject (i) Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell Shares through or to the Manager, any applicable Agent acting as sales agent and/or principal, or directly to the applicable Agents acting as and when it provides instructions, in its discretion, for the sale principal from time to time. Sales of the Shares, and the Manager agrees to use its commercially reasonable efforts to sellif any, through an Agent acting as sales agent for the Company, the Shares or directly to an Agent acting as principal will be made by means of ordinary brokers’ transactions on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)NYSE, (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement negotiated transactions or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law transactions that are deemed to be an “at the at-the-market” offering offerings as defined in Rule 415 under the Act (an “At the Market Offering”)1933 Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makermaker other than on an exchange, in block transactions or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited at market prices prevailing at the time of sale, at prices related to in privately prevailing market prices or at negotiated transactionsprices.
(ii) Notwithstanding In addition, subject to the foregoingterms and conditions set forth herein and provided that the Company enters into a Confirmation with a Forward Purchaser with respect to a relevant Forward in accordance with Section 2(b) hereof, the Company may, in consultation with the Forward Purchaser and the applicable Agent, instruct such Agent, acting as forward seller on behalf of such Forward Purchaser, to offer and sell the Forward Hedge Shares borrowed from third parties to hedge such Forward Purchaser’s exposure under the Forward, as contemplated by the relevant Forward Instruction Notice (as defined in Section 2(b) hereof).
(b) Such instructions may be given and the Shares may be sold through an Agent on an agented basis on any day (each, a “Trading Day”) on which the Company has (i) instructed such Agent to make such sales, on behalf of the Company or on behalf of the applicable Forward Purchaser as forward seller and (ii) satisfied, or such Agent (and if applicable, such Forward Purchaser) has waived, the covenants and conditions specified in Sections 3 and 5 hereof. On any Trading Day, the Company may sell Shares through only one Agent; provided that the foregoing shall not prohibit the Transaction Entities from entering into a Terms Agreement with one or more Agents providing for such Agents, each acting severally as principal, to offer and sell Shares set forth in the Terms Agreements or prohibit or limit in any respect the offer or sale of Shares purchased by any Agent, as principal, from the Company pursuant to a Terms Agreement. If the Company determines to sell Shares through an Agent, it shall (i) in the case of sales on behalf of the Company, through any of the Authorized Company Representatives, may instruct the Manager applicable Agent by telephone (confirmed promptly by electronic mailfacsimile transmission or email, which confirmation will be promptly acknowledged by such Agent) not as to sell the maximum number and the maximum aggregate gross sales price of Shares if to be sold on such sales cannot Trading Day and the minimum price per Share at which such Shares may be effected at sold, or above (ii) in the price designated case of a Forward, propose to the applicable Agent and the applicable Forward Purchaser, by email, to enter into a Forward consistent with the instruction substantially in the form set forth in Exhibit C (or such other form as the Company, such Forward Purchaser and such Agent shall agree) (the “Forward Instruction Notice”). Such Forward Instruction Notice shall specify the Forward Hedge Selling Period (as defined below), the number of Forward Hedge Shares to be sold by the Company relevant Agent over the Forward Hedge Selling Period (the “Designated Forward Hedge Shares”) or the maximum aggregate gross sales price of the Forward Hedge Shares to be sold by the relevant Agent over the Forward Hedge Selling Period (the “Aggregate Maximum Forward Hedge Amount”), the minimum price per share at which Forward Hedge Shares may be sold, the commission the Agent is to receive for selling such Forward Hedge Shares (the “Forward Seller Commission”), the Spread, the initial Stock Loan Fee, the maximum Stock Loan Fee, the Maturity Date, the Forward Price Reduction Dates, the corresponding Forward Price Reduction Amounts (as each such term is defined in the relevant Confirmation) and any other desired terms for the relevant Confirmation. Such Agent and/or such Forward Purchaser shall promptly, and in any such instruction. In addition, the Company or the Manager may, upon notice event prior to the other party hereto by telephone opening of trading on the Trading Day following the Trading Day on which such Forward Instruction Notice was delivered, choose to (confirmed promptly by electronic mail)A) accept the terms proposed in such Forward Instruction Notice, suspend (B) decline to participate in the offering of proposed Forward or (C) propose amended terms upon which to participate in the Shares for a specified period (a “Suspension Period”)proposed Forward; provided, however, that in the case of clause (A) C), the Company may accept or reject such Suspension Period shall apply equally to amended terms in its sole discretion no later than on the Manager Trading Day following the Trading Day on which such Agent and/or such Forward Purchaser proposed amended terms. Promptly upon the acceptance of a Forward Instruction Notice (or its amended terms and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder in any event prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close opening of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE immediately following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectivelyTrading Day), the Company and the Operating Partnership Forward Purchaser shall be deemed to have affirmed each representation enter into a Confirmation substantially in the form of Exhibit B hereto and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofconsistent with such Forward Instruction Notice.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 1 contract
Samples: Atm Equity Offering Sales Agreement (Americold Realty Trust)
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by Each time that the Company wishes to issue and the Manager sell Shares on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time) pursuant to this Agreement (each, a “Placement”), (B) it will instruct the Company, through any Manager by telephone of the individuals listed parameters in accordance with which it desires Shares to be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, the minimum price below which sales may not be made and any limitation on the number of Shares that may be sold in any one day (a “Placement Notice”). The Manager will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same business day (as defined below) on which such Placement Notice is delivered to the Manager, issue to the Company a notice by email addressed to all of the authorized representatives of the Company on Schedule B C hereto (the “Authorized Company Representatives”)) confirming all of the parameters of the Placement. The Placement Notice shall be effective upon receipt by any of the Authorized Company Representatives of the email notice from the Manager, has instructed unless and until (i) the Manager entire amount of the Shares covered by telephone the Placement Notice have been sold, (confirmed promptly by electronic mailii) to make sales of Shares and in accordance with Section 3(a)(ii) hereof, the Company suspends or terminates the Placement Notice, (Ciii) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in issues a notice delivered by electronic mail to subsequent Placement Notice with parameters superseding those on the Manager substantially in the form attached hereto as Schedule C (a “earlier dated Placement Notice”, or (iv) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance this Agreement has been terminated under the Prospectus and the Registration Statement or in an amount in excess provisions of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the ManagerSection 9. Subject to the terms and conditions of this Section 3(a)hereof, the Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated in the Placement Notice; provided, however, that the Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation in the event an offer or sale of the Shares on behalf of the Company may sell Shares by any method permitted by law in the judgment of the Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed to be an “at the marketunderwriter” offering as defined in Rule 415 under the 1933 Act in a transaction that is other than (A) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the 1933 Act or (B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the transactions described in (A) and (B) are hereinafter referred to as “At the Market OfferingOfferings”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailmail from such party), suspend the offering of the Shares for pursuant to this Agreement or suspend or terminate a specified period (a “Suspension Period”)previously issued Placement Notice; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of the Shares shall be at a mutually agreed rate, not up to exceed 2.01.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant applicable time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number aggregate amount of the Shares sold on such day, (ii) the aggregate Net Proceeds to the Company, and (iii) the aggregate compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the date on which such sales are made made, unless another date shall be agreed upon by the Company and the Manager (provided that, if such Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day) (each such date, a “Settlement Date”). As used herein, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of electronically transferring the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties heretoCompany and the Manager, which in all cases shall be freely tradable, transferable, registered shares eligible for delivery through DTC, in good deliverable formreturn for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o4(q) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation its representations and warranty warranties contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership hereinCompany, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof5 of this Agreement.
(viiii) Notwithstanding anything If the Company wishes to issue and sell the Shares other than as set forth in Section 3(a) of this Agreement or as set forth in Section 3(a) of any Alternative Equity Distribution Agreement, it may elect, in its sole discretion, to notify the Manager of the proposed terms of such sale. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. For avoidance of doubt, nothing contained in this Agreement shall be construed to require the Company to engage the Manager or any Alternative Managers in connection with the offer and sale of any of the Company’s securities, including shares of the Common Stock, whether in connection with an underwriting offering or otherwise.
(c) In the event the Company engages the Manager for a sale of Shares that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act, the Company and the Manager will agree to compensation that is customary for the Manager with respect to such transactions.
(d) (i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the contrary hereinsale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement and any Alternative Equity Distribution Agreement would exceed the lesser of (A) the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement and any Alternative Equity Distribution Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares (i) at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and notified to the Manager in writing and (ii) at a price (net of the Manager’s commission, discount or other compensation for such sales payable by the Company pursuant to this Section 3) lower than the Company’s then current net asset value per share (as calculated pursuant to the 1940 Act), unless the Company has received the requisite approval from the Company’s board of directors or a duly authorized committee thereof, and notifies the Manager in writing.
(ii) If any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other parties and sales of the Shares under this Agreement and any Alternative Equity Distribution Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Manager (which such request may be by electronic mail), the Manager shall not sell (1) Series A Preferred Shares at promptly calculate and provide in writing to the Company a price higher than report setting forth, for the Series A Maximum Price. For the purposes hereofprior week, the “Series A Maximum Price” average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(e) Each sale of the Shares to or through the Manager or any Alternative Manager, as applicable, shall mean: (a) through October 4be made in accordance with the terms of this Agreement or, 2020if applicable, a Terms Agreement, or the respective Alternative Equity Distribution Agreement or, if applicable, an Alternative Terms Agreement, as applicable. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the product price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, any provisions relating to the granting of an option to purchase additional Shares for the purpose of covering over-allotments, and the time and date (ieach such time and date being referred to herein as a “Time of Delivery”) $25.00 plus and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any accrued requirements for opinions of counsel, accountants’ letters and unpaid dividends per share to, but excluding, officers’ certificates pursuant to Section 5 hereof and any other information or documents required by the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Main Street Capital CORP)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, (I) the Company agrees to issue and sell through or to the Managerone or more Managers, each as sales agent and/or principal, as and when it provides instructions, in its discretion, to any Manager or Managers for the sale of the Shares, and the applicable Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares in accordance with the terms and subject to the conditions set forth in the relevant Regular Placement Notice (as defined below), this Agreement and, if applicable, the relevant Terms Agreements; and (ii) if the Company enters into a Confirmation with a Forward Purchaser in accordance with Section 1 hereof, the applicable Manager, as forward seller on behalf of such Forward Purchaser, agrees to use its commercially reasonable efforts to offer and sell the Forward Hedge Shares to be borrowed by such Forward Purchaser on the following termsterms and subject to the conditions set forth in the relevant Forward Placement Notice, this Agreement and the applicable Confirmation.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and Company, the applicable Manager and, if applicable, the relevant Forward Purchaser on any day that (AI) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (BII) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the applicable Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares on terms acceptable to such Manager and (CIII) the Company has satisfied its obligations under Section 6 hereof. The If the Company wishes to issue and sell through or to a Manager, as sales agent and/or principal, it will so designate in a notice delivered by electronic mail to the Manager applicable Manager, substantially in the form attached hereto as Schedule C C-1 (a “Regular Placement Notice”). If the Company wishes to issue and sell through a Manager, as forward seller, it will so designate in a notice delivered by electronic mail to the applicable Manager and the applicable Forward Purchaser, substantially in the form attached hereto as Schedule C-2 (a “Forward Placement Notice”). Such Regular Placement Notice or Forward Placement Notice (a “Placement Notice”) shall specify: (1) any minimum price below which sales of Shares may not be effected, (2) in the case of a Forward Placement Notice, (A) the Forward Hedge Selling Period (as defined below), (B) the maximum aggregate gross sales price or the maximum number of Forward Hedge Shares to be sold by the applicable Manager over the Forward Hedge Selling Period specified in such notice (such maximum aggregate gross sales price or share number, the “Aggregate Maximum Forward Hedge Amount”), (C) the Forward Seller Commission (as defined below), (D) the Spread, (E) the Initial Stock Loan Rate, (F) the Maximum Stock Loan Rate, (G) the Trade Date, (H) the Maturity Date, (I) the Forward Price Reduction Dates and (J) the Forward Price Reduction Amounts (each as defined in each applicable Confirmation), and (3) the maximum amount of Shares to be sold by the applicable Manager daily as agreed to by the applicable Manager (in any event and, if applicable, the relevant Forward Purchaser; provided that such amount shall not be in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)Amount; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o)that, 4(p)in the case of a Forward Placement Notice, 4(q), 4(r), 4(s(x) and 4(w) with respect to the delivery sum of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i1) the number of Confirmation Shares sold on such dayissued under all Confirmations that have settled as of the contemplated date of delivery, (ii2) the Net Proceeds to the Company, and aggregate Capped Number (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vieach applicable Confirmation) under all Confirmations outstanding as of the contemplated date of delivery that have not settled and Section 4(o(3) hereof, respectively), the Company and proposed Capped Number for the Operating Partnership Confirmation related to such Forward Placement Notice shall be deemed to have affirmed each representation and warranty contained in not exceed (y) 19.99% of the number of shares of Common Stock outstanding as of the date of this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.The Placement Notice
Appears in 1 contract
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by Each time that the Company wishes to issue and the Manager on sell any day that Shares hereunder (A) is each, a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company RepresentativesPlacement”), has instructed it will notify the Manager by telephone email notice (confirmed promptly or other method mutually agreed to in writing by electronic mailthe parties) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) containing the maximum parameters in accordance with which it desires such Shares to be sold, which shall at a minimum include the number or dollar amount of Shares to be sold, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus Trading Day and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managermade, a form of which containing such minimum sales parameters necessary is attached hereto as Schedule 1. Subject to the terms and conditions of this Section 3(a)hereof, the Manager may shall use its reasonable efforts to sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for all of the Shares subject to or through a market maker, or directly to any customer or client of Placement Notice in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionstime frame specified therein.
(ii) Notwithstanding the foregoing, the Company, through The Placement Notice shall originate from any of the Authorized individuals from the Company Representativesset forth on Schedule 2 (with a copy to each of the other individuals from the Company listed on such schedule), may instruct and shall be addressed to each of the individuals from the Manager set forth on Schedule 2, as such Schedule 2 may be amended from time to time. The Placement Notice shall be effective upon receipt by telephone the Manager unless and until (confirmed promptly i) the entire amount of the Shares to be sold under the Placement Notice have been sold, (ii) the Company suspends or terminates the Placement Notice for any reason in its sole discretion, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice or (iv) this Agreement has been terminated under the provisions of Section 8. It is expressly acknowledged and agreed that neither the Company nor the Manager will have any obligation whatsoever with respect to a Placement of any Shares unless and until the Company delivers a Placement Notice to the Manager, and then only upon the terms specified therein and herein.
(iii) The Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by electronic mail) not the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares if such sales canas required under this Agreement, and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.
(iv) The Company shall not authorize the issuance and sale of, and the Manager shall not be effected obligated to use its reasonable efforts to sell, any Share at or above a price lower than the minimum price therefor designated from time to time by the Company Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Manager in any such instructionwriting. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend or terminate the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiv) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At ordinary brokers’ transactions between members of the Nasdaq Stock Market Offerings LLC that qualify for delivery of a Prospectus to Nasdaq Stock Market LLC in accordance with Rule 153 (such transactions are hereinafter referred to as “Continuous Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the ManagerManager pursuant to a Terms Agreement.
(ivvi) The compensation to the Manager, as an agent of the Company, Manager for sales of the Shares with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, not to exceed 2.03.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) and payable as described in the succeeding subsection (viii) below. The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”), shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvii) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE Nasdaq each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the Manager to the Company, with payment to be made by the Company promptly after its receipt thereof.
(viviii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized If the Manager breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)Manager.
(viiix) At each Applicable Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement.
(b) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement, it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(d) Under no circumstances shall the number or aggregate dollar amount of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) the aggregate amount set forth in Section 1, (ii) the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing.
(e) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Notwithstanding the foregoing, the Company does not meet the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act as of the date hereof.
(viiif) Notwithstanding anything to any other provision of this Agreement, the contrary hereinCompany shall not request the sale of any Shares that would be sold, and the Manager shall not sell (1) Series A Preferred Shares at a price higher than be obligated to sell, during any period in which the Series A Maximum Price. For the purposes hereofCompany is, the “Series A Maximum Price” shall mean: (a) through October 4or would reasonably be deemed to be, 2020, the product in possession of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salematerial non-public information.
Appears in 1 contract
Samples: Equity Distribution Agreement (Millendo Therapeutics, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell exclusively through or to the Manager, Agent acting as sales agent and/or principal, or directly to the Agent acting as and when it provides instructions, in its discretion, for the sale of the Sharesprincipal from time to time, and the Manager Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares. Sales of the Shares, if any, through the Agent acting as sales agent or directly to the Agent acting as principal will be made by means of ordinary brokers’ transactions on Nasdaq, in negotiated transactions or otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices or at prices specified by the Company to the Agent pursuant to Section 2(b). Anything to the contrary notwithstanding in this Agreement, without the Company’s prior written consent (which may include explicit authorization in a Terms Agreement), the Agent may not place Shares (a) by any method other than those deemed to be an “at the market” offering as defined in Rule 415 of the 1933 Act, including without limitation sales made through Nasdaq, on any other existing trading market for the following termsCommon Stock or to or through a market maker, (b) in negotiated transactions, or (c) for its own account as principal. The Agent shall effect any sales of Shares in accordance with applicable state and federal laws, rules and regulations, including Regulation M under the 1934 Act and the rules of Nasdaq and otherwise in accordance with the terms of the applicable Terms Agreement, if any. Nothing contained herein restricts, nor may be deemed to restrict, the Company from undertaking any other offering of its securities, including without limitation, a simultaneous offering of its securities whether pursuant to a separate registration under the 1933 Act (or an exemption from such registration), or another offering under the Registration Statement, provided the Company complies with Section 3(p).
(ib) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE Nasdaq is scheduled to close prior to its regular weekday closing time), (Beach, a “Trading Day”) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) that the Company has satisfied its obligations under Section 6 hereofof this Agreement and that the Company has instructed the Agent to make such sales. The On any Trading Day, the Company may instruct the Agent by telephone (confirmed promptly by telecopy or email, which confirmation will designate in a notice delivered be promptly acknowledged by electronic mail the Agent) as to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum dollar value or number of Shares to be sold by the Manager daily as agreed to by the Manager Agent on such day (in any event not in excess of the amount number available for issuance under the Prospectus and the currently effective Registration Statement Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Agent shall use its commercially reasonable efforts to sell as sales agent all of the Shares so designated by the Company. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling the Shares, (B) the Agent will incur no liability or obligation to the Company or any other person or entity if they do not sell Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement, and (C) the Agent shall be under no obligation to purchase Shares on a principal basis except as otherwise specifically agreed by each of the Agent and the Company pursuant to a Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in an amount a number in excess of the amount number or dollar value of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company Company’s board of directors, or a duly authorized committee thereof, and mutually agreed by the Manager. Subject notified to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined Agent in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionwriting. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail)Agent, suspend the offering of the Shares or the Agent may, upon notice to the Company, suspend the offering of the Shares with respect to which the Agent is acting as sales agent for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Any notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect given pursuant to the delivery of certificatespreceding sentence may be given by telephone (confirmed promptly by telecopy or email, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodwhich confirmation will be promptly acknowledged).
(iiid) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be equal to 3.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. The Company may sell Shares to the Agent, acting as principal, at a price agreed upon with the Agent at the relevant Applicable Time and pursuant to a separate Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(ve) If acting as a sales agent hereunder, the Manager Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Nasdaq, each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager such Agent with respect to such sales.
(vif) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement and any Terms Agreement exceed the aggregate offering price or number, as the case may be, of shares of Common Stock (i) set forth in the preamble paragraph of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement or any Terms Agreement by the Company. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing.
(g) [Intentionally omitted].
(h) Settlement for sales of Shares pursuant to this Section 3(a) 2 will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company to the Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account at The Depository Trust Company against payments by the Agent of the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds delivered to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viii) At each Time Notwithstanding any other provision of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)this Agreement, the Company and the Operating Partnership Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company’s xxxxxxx xxxxxxx policy, as would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, or during any other period in which the Company is, or could reasonably be deemed to be, in possession of material non-public information; provided that, unless otherwise agreed between the Company and the Agent, for purposes of this paragraph (i) such period shall be deemed to end on the date on which the Company’s next subsequent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is filed with the Commission.
(j) At each Applicable Time and Settlement Date, the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 1 contract
Samples: At the Market Equity Offering Sales Agreement (Discovery Laboratories Inc /De/)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the ManagerManagers, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagents, and the Manager agrees Managers agree to use its commercially their reasonable efforts to sell, as sales agent agents for the Company, the Shares on the following terms.
(i) The Shares are to be sold by one of the Managers on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the such Manager on any day that (A) is a trading day for the NYSE Nasdaq Global Market (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Nasdaq”), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the such Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the such Manager daily as agreed to by the such Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, such Manager shall use its reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a) shall be the market price for shares of the Company’s Common Stock sold by such Manager under this Section 3(a) on Nasdaq at the time of sale of such Shares. For the avoidance of doubt, in no event shall the Company submit instructions to sell Shares to (x) more than one Manager under this Agreement or (y) to any Manager under this Agreement and any sales agent or other representative under any other effective sales agency agreement in respect of at the market offerings of Common Stock in accordance with Rule 415(a)(4), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSEeach case, on any other existing single trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionsday.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManagers will be successful in selling the Shares, the Company, through any of the Authorized Company Representatives, may instruct the (B) no Manager by telephone (confirmed promptly by electronic mail) not will incur liability or obligation to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or any other person or entity if such Manager does not sell Shares for any reason other than a failure by such Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) no Manager shall be under any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by such Manager and the Company.
(iii) The Company shall not authorize the issuance and sale of, and the relevant Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to such Manager in writing. The Company or any Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiiv) The Each Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At ordinary brokers’ transactions between members of Nasdaq that qualify for delivery of a Prospectus to Nasdaq in accordance with Rule 153 of the Market Offerings Securities Act (such transactions are hereinafter referred to as “Continuous Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Managersuch Manager pursuant to a Terms Agreement.
(ivv) The compensation to the Manager, as an agent of the Company, each Manager for sales of the Shares with respect to which such Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, not to exceed 2.03.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) and payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when such Manager acts as principal, in which case the Company may sell Shares to such Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”), shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If The Manager acting as sales agent hereunder, the Manager hereunder shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE Nasdaq each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the such Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from such Manager to the Company, with payment to be made by the Company promptly after its receipt thereof.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through a Manager for settlement on such date shall be issued and delivered by the Company to such Manager against payment of the aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the such Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the such Manager any commission to which it would otherwise be entitled absent such default. The Authorized If any Manager breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, such Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)such Manager.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the a Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) Notwithstanding anything If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify a Manager of the proposed terms of such Placement. If such Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, such Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or such Manager unless and until the Company and such Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to a Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, such Manager. A Terms Agreement may also specify certain provisions relating to the contrary hereinreoffering of such Shares by such Manager. The commitment of such Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by such Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with such Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall not sell also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by such Manager.
(1d) Series A Preferred Under no circumstances shall the number and aggregate amount of the Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of sold pursuant to this Agreement and any Terms Agreement exceed (i) $25.00 plus any accrued and unpaid dividends per share tothe aggregate amount set forth in Section 1, but excluding, the date of sale and (ii) 1.005; the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager acting as sales agent in writing.
(be) on October 5If any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, 2020 it shall promptly notify the other parties and thereaftersales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding any other provision of this Agreement the Company shall not request the sale of any Shares that would be sold, $25.00 plus and no Manager shall be obligated to sell, during any accrued and unpaid dividends per share toperiod in which the Company is, but excludingor would reasonably be deemed to be, the date in possession of salematerial non-public information.
Appears in 1 contract
Samples: Equity Distribution Agreement (Eloxx Pharmaceuticals, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through the Agents acting as sales agents, and the Agents agree to use their commercially reasonable efforts to sell as sales agents for the Company, the Shares. The Shares may be offered and sold (A) in negotiated transactions or in block transactions, in each case, with the consent of the Company or (B) by any other method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act, including sales made directly on Nasdaq or sales made into any other existing trading market of the Common Stock (such transactions are hereinafter referred to as “At the Market Offerings”). Nothing in this Agreement shall be deemed to require either party to agree to the Managermethod of offer and sale specified in the preceding sentence, and (except as specified in clause (A) above) the method of placement of any Shares by the Agents shall be at the Agents’ discretion. Each time that the Company wishes to issue and sell Shares hereunder (each, a “Placement”), it will notify an Agent (the “Designated Agent”) by email notice (or other method mutually agreed to in writing by the parties) containing the parameters in accordance with which it desires Shares to be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Schedule I. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule II (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Designated Agent set forth on Schedule II, as such Schedule II may be amended from time to time. If the Designated Agent wishes to accept such proposed terms included in the Placement Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Designated Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same Business Day on which such Placement Notice is delivered to the Designated Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Designated Agent set forth on Schedule II) accepting such terms (the “Agent Acceptance”) or setting forth the terms that the Designated Agent is willing to accept. Where the terms provided in the Placement Notice are proposed to be modified as provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Designated Agent until the Company delivers to the Designated Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the “Acceptance”), which email or other communication shall be addressed to all of the individuals from the Company and the Designated Agent set forth on Schedule II and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Designated Agent, on the same Business Day. The Placement Notice shall be effective upon receipt by the Company of the Designated Agent Acceptance or, if modified as provided above, upon receipt by the Designated Agent of the Company Acceptance, as the case may be, unless and until (i) the entire amount of the Shares covered by the Acceptance have been sold, (ii) in accordance with the notice requirements set forth in Section 4(c), the Company suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) this Agreement has been terminated under the provisions of Section 9. It is expressly acknowledged and agreed that neither the Company nor the Designated Agent will have any obligation whatsoever with respect to a Placement unless and until the Company delivers a Placement Notice to the Designated Agent and there occurs with respect thereto either (i) an Agent Acceptance or (ii) a Company Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the relevant Acceptance and herein. In the event of a conflict between the terms of this Agreement and the terms of an Acceptance, the terms of the Acceptance will control. Subject to the terms and conditions hereof, upon the existence of an Acceptance, the Designated Agent shall use its commercially reasonable efforts to sell as sales agent and/or principal, as and when it provides instructions, Shares designated in its discretion, for the sale of Acceptance up to the Sharesamount specified, and otherwise in accordance with the Manager agrees terms of such Acceptance. The Company and the Designated Agent each acknowledge and agree that (A) there can be no assurance that the Designated Agent will be successful in selling Shares and (B) the Designated Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Designated Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
(b) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Designated Agent as sales agent shall not be permitted to sell, as sales agent for the Company, the any Shares on the following terms.
(i) The Shares are at a price lower than the minimum price therefor authorized from time to be sold on a daily basis time, or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (Aii) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makerBoard, or directly to any customer or client of a duly authorized committee thereof, and as set forth in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionapplicable Acceptance. In addition, the Company or the Manager Designated Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering telecopy or email to all of the individuals of the other party set forth on Schedule II, which confirmation will be promptly acknowledged by the receiving party) suspend or refuse to undertake any sale of Shares designated in such Acceptance for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice. Each of the parties hereto agrees that no such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) effective against the other unless it originates from an individual named on Schedule II and 4(w) with respect is made to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination individuals of the Suspension Periodother party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time.
(iiic) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Designated Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Designated Agent on Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Designated Agent for sales of Shares with respect to which the Designated Agent acts as sales agent shall be a maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. In lieu of the Company paying all compensation payable to the Designated Agent for the sale of the Shares pursuant to this Agreement, the Adviser reserves the right to pay any portion of such compensation in its sole discretion. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Designated Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vd) If acting as sales agent hereunder, the Manager The Designated Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Nasdaq each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Designated Agent with respect to such sales. For the avoidance of doubt, such written confirmation will be provided to the Company no later than the opening of trading on the immediately following trading day on Nasdaq.
(vie) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in Section 1 of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement, or (iii) authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Designated Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Designated Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s Board, or a duly authorized committee thereof, and notified to the Designated Agent in writing as set forth in the applicable Placement Notice. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Designated Agent shall calculate and provide in writing to the Company, on a monthly basis, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(f) Settlement for sales of Shares pursuant to this Section 3(a) 4 and made in accordance with the terms of the applicable Acceptance will occur on the second first business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day for Nasdaq (other than a day on the NYSE which Nasdaq is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Designated Agent, and in each case, in accordance with the applicable rules and regulations (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the sale of Designated Agent for settlement on such Shares date shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or Designated Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon against payments by the parties hereto, which Designated Agent of the Net Proceeds from the sale of such Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable formsame day funds delivered to an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement DateDate pursuant to this Agreement, the Company shall (Ai) indemnify and hold the Manager Designated Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Designated Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viig) At each Time of SaleApplicable Time, each Settlement Date and each Representation Date (each, as such term is defined in Section 2(b), Section 3(a)(vi6(n) and Section 4(o) hereof, respectivelyherein), the Company Company, the Adviser and the Operating Partnership Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any The obligation of the Manager Designated Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof4 of this Agreement.
(viiih) Notwithstanding anything Except as may be mutually agreed by the Company and the Designated Agent, the Company and the Designated Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Designated Agent shall not be obligated to sell, during: the period that commences on the fifth (5th) business day prior to the contrary hereinCompany’s filing of its Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as applicable, and ending on the Manager shall not sell date on which the Company files with the Commission its Quarterly Report on Form 10-Q (the “10-Q Filing”) or its Annual Report on Form 10-K (the “10-K Filing”), as applicable (each such filing referred to in clause (1) Series A Preferred or (2) shall also be referred to herein as a “Quarterly Filing”). To the extent the Company releases its earnings for its most recent quarterly period or fiscal year, as applicable (an “Earnings Release”) before it files with the Commission its quarterly report on Form 10-Q for such quarterly period or annual report on Form 10-K for such fiscal year, as applicable, then the Designated Agent and the Company agree that no sales of Shares at a price higher than shall take place for the Series A Maximum Priceperiod beginning on the date of the Earnings Release and ending on the date of the applicable Quarterly Filing. For Notwithstanding the purposes hereofforegoing, without the “Series A Maximum Price” prior written consent of each of the Company and the Designated Agent, no sales of Shares shall mean: (a) through October 4take place, 2020and the Company shall not request the sale of any Shares that would be sold, and the product Designated Agent shall not be obligated to sell, during any period in which the Company is in possession of material non-public information.
(i) $25.00 plus any accrued With respect to the offering and unpaid dividends per share to, but excludingsale of Shares pursuant to this Agreement, the date Company agrees that any offer to sell Shares, any solicitation of sale an offer to buy Shares, and (ii) 1.005; any sales of Shares shall only be effected by or through a single Agent on any single given day, and (b) the Company shall in no event request that more than one Agent offer or sell Shares pursuant to this Agreement on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salesame day.
Appears in 1 contract
Samples: Equity Distribution Agreement (Gladstone Capital Corp)
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Trading Day”), (B) the Company, through Company has instructed the Manager by telephone (confirmed promptly by electronic mail to any of the individuals listed as authorized representatives of the Company on Schedule B C hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof5 of this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily or as otherwise agreed to by the Manager (and the Company and in any event not in excess of the amount of Shares available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement orby the Company’s board of directors, together with all sales of Shares under this Agreement or a duly authorized committee thereof, and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions of this Section 3(a)hereof, the Manager shall use its commercially reasonable efforts to offer and sell on any day all of the Shares designated for the sale by the Company on such day; provided, however, that the Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may sell Shares by any method permitted by law in the reasonable judgment of the Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed to be an “at the marketunderwriter” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any in a transaction that is other existing trading market for the Shares to or through a market maker, or directly to any customer or client than by means of ordinary brokers’ transactions between members of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited NYSE that qualify for delivery of a Prospectus to the NYSE in privately negotiated transactionsaccordance with Rule 153 under the Act.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mailmail from the Company) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction, which price shall not be below the par value of the Common Stock. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailmail from such party), suspend the offering of the Shares for a specified period (a “Suspension Period”)Shares; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At “at the Market Offerings market” offerings as defined in Rule 415 under the Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock or to or through a market maker, and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager, including but not limited to in privately negotiated transactions.
(iv) The compensation to the Manager, as an agent of the CompanyCompany under this Agreement, for sales of the Shares shall be at a mutually agreed rate, not to exceed 2.02.00% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any documented transaction fees imposed on the Manager by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) ), but in any event no later than the opening of the immediately following Trading Day, setting forth (i) the aggregate number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the aggregate Net Proceeds to the Company, and (iii) the aggregate compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the date on which such sales are made (provided that, if such second Trading Day is not a business day (as defined below), then settlement will occur on the next succeeding Trading Day that is also a business day), unless another date shall be agreed upon by the Company and the Manager (each such date, a “Settlement Date”). As used in the preceding sentence and in Section 6 below, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares eligible for delivery through DTC, in good deliverable formreturn for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectivelybelow), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of each Time of Sale, Settlement Date and the Operating Partnership hereinRepresentation Date, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof5 of this Agreement.
(viiii) Notwithstanding anything If the Company, at its discretion, wishes to issue and sell the Shares to the contrary hereinManager on a principal basis (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(ii) In the event the Company engages the Manager for a sale of Shares that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act, the Company and the Manager will agree to compensation that is customary for the Manager with respect to such transactions.
(c) (i) Under no circumstances shall not sell the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement and any Alternative Equity Distribution Agreement would exceed the lesser of (1A) Series A Preferred the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement and any Alternative Equity Distribution Agreement by the Company’s board of directors, or a duly authorized committee thereof. Under no circumstances shall the Company cause or request the offer or sale of any Shares at a price higher lower than the Series A Maximum Price. For minimum price authorized from time to time by the purposes hereofCompany’s board of directors or a duly authorized committee thereof, and notified to the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleManager in writing.
Appears in 1 contract
Samples: Equity Distribution Agreement (Medical Properties Trust Inc)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through the Agents acting as sales agents, and the Agents agree to use their commercially reasonable efforts to sell as sales agents for the Company, the Shares. The Shares may be offered and sold (A) in negotiated transactions or in block transactions, in each case, with the consent of the Company or (B) by any other method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act, including sales made directly on Nasdaq or sales made into any other existing trading market of the Common Stock (such transactions are hereinafter referred to as “At the Market Offerings”). Nothing in this Agreement shall be deemed to require either party to agree to the Managermethod of offer and sale specified in the preceding sentence, and (except as specified in clause (A) above) the method of placement of any Shares by the Agents shall be at the Agents’ discretion. Each time that the Company wishes to issue and sell Shares hereunder (each, a “Placement”), it will notify an Agent (the “Designated Agent”) by email notice (or other method mutually agreed to in writing by the parties) containing the parameters in accordance with which it desires Shares to be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Schedule I. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule II (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Designated Agent set forth on Schedule II, as such Schedule II may be amended from time to time. If the Designated Agent wishes to accept such proposed terms included in the Placement Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Designated Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same Business Day on which such Placement Notice is delivered to the Designated Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Designated Agent set forth on Schedule II) accepting such terms (the “Agent Acceptance”) or setting forth the terms that the Designated Agent is willing to accept. Where the terms provided in the Placement Notice are proposed to be modified as provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Designated Agent until the Company delivers to the Designated Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the “Acceptance”), which email or other communication shall be addressed to all of the individuals from the Company and the Designated Agent set forth on Schedule II and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Designated Agent, on the same Business Day. The Placement Notice shall be effective upon receipt by the Company of the Designated Agent Acceptance or, if modified as provided above, upon receipt by the Designated Agent of the Company Acceptance, as the case may be, unless and until (i) the entire amount of the Shares covered by the Acceptance have been sold, (ii) in accordance with the notice requirements set forth in Section 4(c), the Company suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) this Agreement has been terminated under the provisions of Section 9. It is expressly acknowledged and agreed that neither the Company nor the Designated Agent will have any obligation whatsoever with respect to a Placement unless and until the Company delivers a Placement Notice to the Designated Agent and there occurs with respect thereto either (i) an Agent Acceptance or (ii) a Company Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the relevant Acceptance and herein. In the event of a conflict between the terms of this Agreement and the terms of an Acceptance, the terms of the Acceptance will control. Subject to the terms and conditions hereof, upon the existence of an Acceptance, the Designated Agent shall use its commercially reasonable efforts to sell as sales agent and/or principal, as and when it provides instructions, Shares designated in its discretion, for the sale of Acceptance up to the Sharesamount specified, and otherwise in accordance with the Manager agrees terms of such Acceptance. The Company and the Designated Agent each acknowledge and agree that (A) there can be no assurance that the Designated Agent will be successful in selling Shares and (B) the Designated Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Designated Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
(b) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Designated Agent as sales agent shall not be permitted to sell, as sales agent for the Company, the any Shares on the following terms.
(i) The Shares are at a price lower than the minimum price therefor authorized from time to be sold on a daily basis time, or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (Aii) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makerBoard, or directly to any customer or client of a duly authorized committee thereof, and as set forth in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionapplicable Acceptance. In addition, the Company or the Manager Designated Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering telecopy or email to all of the individuals of the other party set forth on Schedule II, which confirmation will be promptly acknowledged by the receiving party) suspend or refuse to undertake any sale of Shares designated in such Acceptance for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice. Each of the parties hereto agrees that no such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) effective against the other unless it originates from an individual named on Schedule II and 4(w) with respect is made to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination individuals of the Suspension Periodother party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time.
(iiic) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Designated Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Designated Agent on Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Designated Agent for sales of Shares with respect to which the Designated Agent acts as sales agent shall be a maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. In lieu of the Company paying all compensation payable to the Designated Agent for the sale of the Shares pursuant to this Agreement, the Adviser reserves the right to pay any portion of such compensation in its sole discretion. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Designated Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vd) If acting as sales agent hereunder, the Manager The Designated Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Nasdaq each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Designated Agent with respect to such sales. For the avoidance of doubt, such written confirmation will be provided to the Company no later than the opening of trading on the immediately following trading day on Nasdaq.
(vie) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in Section 1 of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement, or (iii) authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Designated Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Designated Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s Board, or a duly authorized committee thereof, and notified to the Designated Agent in writing as set forth in the applicable Placement Notice. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Designated Agent shall calculate and provide in writing to the Company, on a monthly basis, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(f) Settlement for sales of Shares pursuant to this Section 3(a) 4 and made in accordance with the terms of the applicable Acceptance will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day for Nasdaq (other than a day on the NYSE which Nasdaq is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Designated Agent, and in each case, in accordance with the applicable rules and regulations (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the sale of Designated Agent for settlement on such Shares date shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or Designated Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon against payments by the parties hereto, which Designated Agent of the Net Proceeds from the sale of such Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable formsame day funds delivered to an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement DateDate pursuant to this Agreement, the Company shall (Ai) indemnify and hold the Manager Designated Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Designated Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viig) At each Time of SaleApplicable Time, each Settlement Date and each Representation Date (each, as such term is defined in Section 2(b), Section 3(a)(vi6(n) and Section 4(o) hereof, respectivelyherein), the Company Company, the Adviser and the Operating Partnership Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any The obligation of the Manager Designated Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof4 of this Agreement.
(viiih) Notwithstanding anything Except as may be mutually agreed by the Company and the Designated Agent, the Company and the Designated Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Designated Agent shall not be obligated to sell, during: the period that commences on the fifth (5th) business day prior to the contrary hereinCompany’s filing of its Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as applicable, and ending on the Manager shall not sell date on which the Company files with the Commission its Quarterly Report on Form 10-Q (the “10-Q Filing”) or its Annual Report on Form 10-K (the “10-K Filing”), as applicable (each such filing referred to in clause (1) Series A Preferred or (2) shall also be referred to herein as a “Quarterly Filing”). To the extent the Company releases its earnings for its most recent quarterly period or fiscal year, as applicable (an “Earnings Release”) before it files with the Commission its quarterly report on Form 10-Q for such quarterly period or annual report on Form 10-K for such fiscal year, as applicable, then the Designated Agent and the Company agree that no sales of Shares at a price higher than shall take place for the Series A Maximum Priceperiod beginning on the date of the Earnings Release and ending on the date of the applicable Quarterly Filing. For Notwithstanding the purposes hereofforegoing, without the “Series A Maximum Price” prior written consent of each of the Company and the Designated Agent, no sales of Shares shall mean: (a) through October 4take place, 2020and the Company shall not request the sale of any Shares that would be sold, and the product Designated Agent shall not be obligated to sell, during any period in which the Company is in possession of material non-public information.
(i) $25.00 plus any accrued With respect to the offering and unpaid dividends per share to, but excludingsale of Shares pursuant to this Agreement, the date Company agrees that any offer to sell Shares, any solicitation of sale an offer to buy Shares, and (ii) 1.005; any sales of Shares shall only be effected by or through a single Agent on any single given day, and (b) the Company shall in no event request that more than one Agent offer or sell Shares pursuant to this Agreement on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salesame day.
Appears in 1 contract
Samples: Equity Distribution Agreement (Gladstone Capital Corp)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell exclusively through or to the Manager, Agent acting as sales agent and/or principal, or directly to the Agent acting as and when it provides instructions, in its discretion, for the sale of the Sharesprincipal from time to time, and the Manager Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares on Shares. Nothing contained herein restricts, nor may be deemed to restrict, the following termsCompany from undertaking another offering of its securities pursuant to a separate registration under the 1933 Act (or any exemption from such registration), or another offering under the Registration Statement, provided the Company complies with Section 3(p) hereof. Sales of the Shares, if any, through the Agent acting as sales agent or directly to the Agent acting as principal may be made in transactions that are deemed to be “at the market offerings” as defined in Rule 415 under the 0000 Xxx.
(ib) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE Nasdaq is scheduled to close prior to its regular weekday closing time), (Beach, a “Trading Day”) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) that the Company has satisfied its obligations under Section 6 hereofof this Agreement and that the Company has instructed the Agent to make such sales. The For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Company will designate or its Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which Xxxxxx Xxxxxxxx is acting for the Company in a notice delivered capacity other than as Agent under this Agreement. On any Trading Day, the Company may instruct the Agent by electronic mail telephone (confirmed promptly by email by any of the individuals from the Company set forth on Schedule 1 and shall be addressed to each of the Manager substantially in individuals from the form attached hereto Agent set forth on Schedule 1, which confirmation will be promptly acknowledged by the Agent) as Schedule C (a “Placement Notice”) to the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager Agent on such day (in any event not in excess of the amount number available for issuance under the Prospectus and the currently effective Registration Statement Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Agent shall use its commercially reasonable efforts to sell as sales agent all of the Shares so designated by the Company and in the manner and on the terms so designated by the Company. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling the Shares, (B) the Agent will incur no liability or obligation to the Company or any other person or entity if they do not sell Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement, and (C) the Agent shall be under no obligation to purchase Shares on a principal basis except as otherwise specifically agreed by each of the Agent and the Company pursuant to a Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, any Shares pursuant to this Agreement (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in an amount a number in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company Company’s board of directors, or a duly authorized committee thereof, and mutually agreed by the Manager. Subject notified to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined Agent in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionwriting. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail)Agent, suspend the offering of the Shares or the Agent may, upon notice to the Company, suspend the offering of the Shares with respect to which the Agent is acting as sales agent for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Any notice given pursuant to the preceding sentence may be given by telephone (confirmed promptly by email by any of the individuals from the Company set forth on Schedule 1 and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect addressed to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination each of the Suspension Periodindividuals from the Agent set forth on Schedule 1, which confirmation will be promptly acknowledged).
(iiid) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on the Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be equal to up to 3.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. The Company may sell Shares to the Agent, acting as principal, at a price agreed upon with the Agent at the relevant Applicable Time and pursuant to a separate Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(ve) If acting as a sales agent hereunder, the Manager Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Nasdaq, each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager such Agent with respect to such sales.
(vif) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement and any Terms Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in the preamble paragraph of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement or any Terms Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing.
(g) Settlement for sales of Shares pursuant to this Section 3(a) 2 will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company to the Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account at The Depository Trust Company against payments by the Agent of the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds delivered to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viih) At each Time Notwithstanding any other provision of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)this Agreement, the Company and the Operating Partnership Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information.
(i) At each Applicable Time, Settlement Date, Registration Statement Amendment Date and each Company Periodic Report Date, the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 1 contract
Samples: At the Market Equity Offering Sales Agreement (Pulse Biosciences, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the ManagerManagers, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagents, and the Manager agrees Managers agree to use its commercially their reasonable efforts to sell, as sales agent agents for the Company, the Shares on the following terms.
(i) The Shares are to be sold by either of the Managers on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the such Manager on any day that (A) is a trading day for the NYSE Nasdaq Global Market (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Nasdaq”), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the such Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number daily amount of the Shares to be sold by the such Manager daily as agreed to by the such Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, such Manager shall use its reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Stock sold by such Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on Nasdaq at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManagers will be successful in selling the Shares, the Company, through any of the Authorized Company Representatives, may instruct the (B) no Manager by telephone (confirmed promptly by electronic mail) not will incur liability or obligation to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or any other person or entity if such Manager does not sell Shares for any reason other than a failure by such Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) no Manager shall be under any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by such Manager and the Company.
(iii) The Company shall not authorize the issuance and sale of, and the relevant Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to such Manager in writing. The Company or any Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiiv) The Each Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At ordinary brokers’ transactions between members of Nasdaq that qualify for delivery of a Prospectus to Nasdaq in accordance with Rule 153 of the Market Offerings Securities Act (such transactions are hereinafter referred to as “Continuous Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Managersuch Manager pursuant to a Terms Agreement.
(ivv) The compensation to the Manager, as an agent of the Company, each Manager for sales of the Shares with respect to which such Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, not up to exceed 2.03.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) and payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when such Manager acts as principal, in which case the Company may sell Shares to such Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”), shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If Each Manager acting as sales agent hereunder, the Manager hereunder shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE Nasdaq each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the such Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from such Manager to the Company, with payment to be made by the Company promptly after its receipt thereof.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through a Manager for settlement on such date shall be issued and delivered by the Company to such Manager against payment of the aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the such Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the such Manager any commission to which it would otherwise be entitled absent such default. The Authorized If any Manager breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, such Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)such Manager.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the a Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) Notwithstanding anything If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify a Manager of the proposed terms of such Placement. If such Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, such Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or such Manager unless and until the Company and such Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to a Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, such Manager. A Terms Agreement may also specify certain provisions relating to the contrary hereinreoffering of such Shares by such Manager. The commitment of such Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by such Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with such Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall not sell also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by such Manager.
(1d) Series A Preferred Under no circumstances shall the number and aggregate amount of the Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of sold pursuant to this Agreement and any Terms Agreement exceed (i) $25.00 plus any accrued and unpaid dividends per share tothe aggregate amount set forth in Section 1, but excluding, the date of sale and (ii) 1.005the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager acting as sales agent in writing.
(e) If any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other parties and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding any other provision of this Agreement the Company shall not request the sale of any Shares that would be sold, and no Manager shall be obligated to sell, during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists at the Execution Time, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, or during any other period in which the Company is, or would reasonably be deemed to be, in possession of material non-public information; provided that, unless otherwise agreed between the Company and the Managers, for purposes of this paragraph (bf) such period shall be deemed to end on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleon which the Company’s next subsequent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is filed with the Commission.
Appears in 1 contract
Samples: Equity Distribution Agreement (PhaseBio Pharmaceuticals Inc)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE Nasdaq Global Select Market (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Nasdaq”), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Manager shall use its reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Stock sold by the Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on the Nasdaq at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding The Company acknowledges and agrees that (A) there can be no assurance that the foregoingManager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.
(iii) The Company shall not authorize the issuance and sale of, through any of the Authorized Company Representatives, may instruct and the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales canshall not be effected obligated to use its reasonable efforts to sell, any Share at or above a price lower than the minimum price therefor designated from time to time by the Company Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Manager in any such instructionwriting. In addition, the The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiiv) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At ordinary brokers’ transactions between members of the Market Offerings Nasdaq that qualify for delivery of a Prospectus to the Nasdaq in accordance with Rule 153 (such transactions are hereinafter referred to as “Continuous Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the ManagerManager pursuant to a Terms Agreement.
(ivv) The compensation to the Manager, as an agent of the Company, Manager for sales of the Shares with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, not up to exceed 2.03.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) and payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”), shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvi) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE Nasdaq each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vivii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized If the Manager breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)Manager.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Date, Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Filing Date (as defined in Section 4(o) hereof, respectively4(x)), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(d) Under no circumstances shall the number and aggregate amount of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) the aggregate amount set forth in Section 1, (ii) the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing.
(e) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding anything to any other provision of this Agreement the contrary hereinCompany shall not request the sale of any Shares that would be sold, and the Manager shall not sell (1) Series A Preferred Shares be obligated to sell, during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists at a price higher than the Series A Maximum Price. For Execution Time, would prohibit purchases or sales of the purposes hereofCompany’s Common Stock by its officers or directors, or during any other period in which the “Series A Maximum Price” shall mean: (a) through October 4Company is, 2020or could be deemed to be, the product in possession of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salematerial non-public information.
Appears in 1 contract
Samples: Equity Distribution Agreement (Windstream Holdings, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell exclusively through or to the Manager, Agent acting as sales agent and/or principal, or directly to the Agent acting as and when it provides instructions, in its discretion, for the sale of the Sharesprincipal from time to time, and the Manager Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares. Sales of the Shares, if any, may be made through the Agent acting as sales agent or directly to the Agent acting as principal. Anything to the contrary notwithstanding in this Agreement, without the Company’s prior written consent (which may include explicit authorization in a Terms Agreement), the Agent may not place shares by any method other than those deemed to be “at the market offerings” as defined in Rule 415 of the 1933 Act. The Agent shall effect any sales of Shares on in accordance with applicable state and federal laws, rules and regulations and the following termsrules of the Nasdaq and otherwise in accordance with the terms of the applicable Terms Agreement. Nothing contained herein restricts, nor may be deemed to restrict, the Company from undertaking another offering of its securities pursuant to a separate registration under the 1933 Act (or any exemption from such registration), or another offering under the Registration Statement, provided the Company complies with Section 3(p) hereof.
(ib) The Subject to the applicable Terms Agreement or instructions to sell shares delivered pursuant to this Section 2(b), the Shares to be sold pursuant to this Agreement are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE Nasdaq is scheduled to close prior to its regular weekday closing time), (Beach, a “Trading Day”) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) that the Company has satisfied its obligations under Section 6 hereofof this Agreement and that the Company has instructed the Agent to make such sales. The For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Company will designate or its Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which Xxxxxx Xxxxxxxx is acting for the Company in a notice delivered capacity other than as Agent under this Agreement. On any Trading Day, the Company may instruct the Agent by electronic mail telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged by the Agent) as to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum aggregate dollar value or number of Shares to be sold by the Manager daily as agreed to by the Manager Agent on such day (in any event not in excess of the amount number available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected sold (each such instruction and any other limitations specified by the Company and mutually agreed by the Managersubsequent confirmation, a “Placement Notice”). Subject to the terms and conditions hereof, the Agent shall use its commercially reasonable efforts to sell as sales agent all of the Shares so designated by the Company and in the manner and on the terms so designated in writing by the Company. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling the Shares, (B) the Agent will incur no liability or obligation to the Company or any other person or entity if they do not sell Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement, and (C) the Agent shall be under no obligation to purchase Shares on a principal basis except as otherwise specifically agreed by each of the Agent and the Company pursuant to a Terms Agreement. In the event of a conflict between the terms of this Section 3(a)Agreement and the terms of a Terms Agreement, the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client terms of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssuch Terms Agreement will control.
(iic) Notwithstanding the foregoing, the CompanyCompany shall not authorize the issuance and sale of, through and the Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in a number in excess of the Authorized Company Representativesnumber or maximum aggregate dollar value of Shares, may instruct the Manager by telephone (confirmed promptly by electronic mail) not in each case, authorized from time to sell Shares if such sales cannot be effected at or above the price designated time by the Company Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in any such instructionwriting. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail)Agent, suspend the offering of the Shares or the Agent may, upon notice to the Company, suspend the offering of the Shares with respect to which the Agent is acting as sales agent for a specified period (a “Suspension Period”)any reason and at any time if receipt of such notice is actually acknowledged by any of the individuals to whom the notice is sent; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Any notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect given pursuant to the delivery of certificatespreceding sentence may be given by telephone (confirmed promptly by telecopy or email, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodwhich confirmation will be promptly acknowledged).
(iiid) The Manager hereby covenants and agrees not to make gross sales price per share of any sales of Shares on behalf of the Company, sold pursuant to this Section 3(a), other than (A) Agreement by means of At the Market Offerings and (B) such other Agent acting as sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and market price prevailing at the Manager.
(iv) The compensation to the Manager, as an agent time of sale for shares of the Company’s Common Stock sold by the Agent on the Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be at a mutually agreed rate, not up to exceed 2.03.0% of the gross sales price of any the Shares for amounts of Shares sold pursuant to this Section 3(a)Agreement. The Company may sell Shares to the Agent, acting as principal, at a price agreed upon with the Agent at the relevant Applicable Time and pursuant to a separate Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(ve) If acting as a sales agent hereunder, the Manager Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable promptly following the close of trading on the NYSE Nasdaq, each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager such Agent with respect to such sales.
(vif) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement and any Terms Agreement exceed the aggregate offering price or number, as the case may be, of shares of Common Stock (i) set forth in the preamble paragraph of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement or any Terms Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing.
(g) Settlement for sales of Shares pursuant to this Section 3(a) 2 will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company to the Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account at The Depository Trust Company against payments by the Agent of the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds delivered to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against shall, in addition to any lossindemnification obligation pursuant to Section 7, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viih) At each Time Notwithstanding any other provision of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)this Agreement, the Company and the Operating Partnership Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is, or would reasonably be deemed to have affirmed each representation and warranty contained be, in this Agreement. possession of material non-public information.
(i) Any obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares pursuant to this Agreement on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 1 contract
Samples: At the Market Equity Offering Sales Agreement (Ra Pharmaceuticals, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell Shares through or to the Manager, applicable Agent(s) acting as sales agent and/or principal, or directly to the applicable Agent(s) acting as and when it provides instructions, in its discretion, for the sale principal from time to time. Sales of the Shares, and the Manager agrees to use its commercially reasonable efforts to sellif any, through an Agent acting as sales agent or directly to an Agent acting as principal will be made by means of ordinary brokers’ transactions on the NYSE or otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices. For the avoidance of doubt, this Section 2 shall not apply to sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the Companyaccounts of such persons, in each case in which any Agent is acting for the Shares on the following termsCompany in a capacity other than as Agent or principal under this Agreement.
(ib) The Shares are to be sold to an Agent on a daily an agented basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)time)(each, a “Trading Day”) on which (Bi) the Company, through any of the individuals listed as authorized representatives of Company has instructed such Agent to make such sales and (ii) the Company on Schedule B hereto (has satisfied its covenants and conditions specified in Sections 4 and 5 hereof. On any Trading Day, the “Authorized Company Representatives”)may sell Shares through only one Agent and, has instructed if it determines to do so, shall instruct the Manager applicable Agent by telephone (confirmed promptly by electronic mailtelecopy or email, which confirmation will be promptly acknowledged by such Agent) as to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus on such Trading Day and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold (each, a “Sale Instruction”). Subject to the terms and conditions specified herein (including, without limitation, the accuracy of this the representations and warranties of the Company and the performance by the Company of its covenants and other obligations, contained herein and the satisfaction of the additional conditions specified in Section 3(a5 hereof), the Manager may such Agent shall use its commercially reasonable efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for all of the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price so designated by the Company as sales agent in any accordance with such instruction. In additionOn any Trading Day, the Company shall give at least one business day’s prior written notice by telecopy or email to the Agents as to any change of the Agent through whom sales of Shares as sales agent will be made. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Company or its subsidiaries or to a trustee or other person acquiring Shares for the accounts of such persons in which Citigroup, Barclays Capital Inc., BNY Mellon Capital Markets, LLC, Deutsche Bank Securities Inc., X.X. Xxxxxx Securities LLC, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. LLC, RBC Capital Markets, LLC, Scotia Capital (USA) Inc., UBS Securities LLC or Xxxxx Fargo Securities, LLC is acting for the Company in a capacity other than as Agent under this Agreement. The Company and the Agents each acknowledge and agree that (A) there can be no assurance that any Agent will be successful in selling any Shares and (B) no Agent will incur any liability to the Company or its affiliates if it fails to sell Shares for any reason, other than a failure to use its respective commercially reasonable efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell such Shares as required by this Agreement.
(c) The Company or the Manager Agent through whom the sale of Shares are to be made as sales agent on any Trading Day may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailtelecopy or email, which confirmation will be promptly acknowledged by the receiving party), suspend the offering of the Shares with respect to which such Agent is acting as sales agent for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold sold, or with respect to Shares that the Company has agreed to sell, hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiid) The Manager hereby covenants and agrees not gross sales price of any Shares sold pursuant to make any this Agreement by the applicable Agent acting as sales agent of Shares on behalf the Company shall be equal to, in the discretion of such Agent but subject to the specific instructions of the Company, pursuant the market price prevailing at the time of sale for the Shares sold by such Agent on the NYSE or otherwise, at prices related to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) prevailing market prices or at negotiated prices. The compensation payable to the Manager, as an agent of the Company, Agent for sales of Shares with respect to which such Agent acts as sales agent shall be at a mutually agreed rate, not to exceed 2.02% of the gross sales price of any Shares sold pursuant to this Section 3(a)for such Shares, and the exact amount shall be agreed at each time the Company provides a Sale Instruction. The remaining proceeds, after further deduction for any transaction fees, transfer taxes or similar taxes or fees imposed by any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, assets or operations (each, a “Governmental Entity”) or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares sales (the “Net Proceeds”). The applicable Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be made. Notwithstanding the foregoing, in the event the Company engages an Agent as sales agent for the sale of Shares that would constitute a “distribution” within the meaning of Rule 100 of Regulation M under the 1934 Act, the Company and such Agent will agree to compensation for such Agent that is customary for such sales.
(ve) If acting as sales agent hereunder, the Manager applicable Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE on each day Trading Day on which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the aggregate Net Proceeds to the Company, Company and (iii) the aggregate compensation payable by the Company to the Manager such Agent with respect to such sales.
(vif) Under no circumstances shall the aggregate gross sales price or number, as the case may be, of Shares offered or sold pursuant to this Agreement, or which are the subject of a Sale Instruction to an Agent as sales agent pursuant to Section 2(b) hereof, exceed the aggregate gross sales price or number, as the case may be, of Shares (i) referred to in the preamble paragraph of this Agreement, as reduced by prior sales of Shares under this Agreement, (ii) available for sale under the Registration Statement or (iii) duly authorized from time to time to be issued and sold under this Agreement by the Company or approved for listing on the NYSE. In addition, under no circumstances shall any Shares with respect to which an Agent acts as sales agent be offered or sold, or be the subject of a Sale Instruction to such Agent as sales agent pursuant to Section 2(b) hereof, at a price lower than the minimum price therefor duly authorized from time to time by the Company and notified to such Agent in writing. The Agents shall have no responsibility for maintaining records with respect to Shares available for sale under the Registration Statement or for determining the aggregate gross sales price, number or minimum price of Shares duly authorized by the Company.
(g) If the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 1934 Act are not satisfied with respect to the Company or the Shares, the Company shall promptly notify the Agents and future offers and sales of Shares through the Agents on an agented basis under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of the parties hereto.
(h) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the trade date on which such sales are made made, unless another date shall be agreed to in writing by the Company and the applicable Agent(s) (each such dateday, a “Settlement Date”). On each Settlement DateDate for the sale of Shares through the applicable Agent as sales agent, such Shares shall be delivered by the Company to such Agent in book-entry form to such Agent’s account at The Depository Trust Company against payment by such Agent of the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds delivered to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares through an Agent as sales agent on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager such Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager such Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viii) At each Time Notwithstanding any other provision of Salethis Agreement, Settlement Date the Company shall not offer or sell, or instruct an Agent to offer or sell, any Shares through an Agent as sales agent (and, by notice to the Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any Sale Instruction for any such offer or sale of any Shares prior to the commencement of the periods referenced below), and Representation Date the Agents shall not be obligated to make any such offer or sale of Shares, (i) during any period in which the Company is, or could reasonably be deemed to be, in possession of material non-public information or (ii) except as provided in Section 2(j) hereof, at any time during the period commencing on the business day prior to the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as defined in of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement.
(j) Notwithstanding clause (ii) of Section 2(b), Section 3(a)(vi) and Section 4(o2(i) hereof, respectivelyif the Company wishes to offer or sell Shares to or through an Agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall first (i) prepare and deliver to such Agent (with a copy to counsel for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officer’s quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to such Agent, and, prior to its filing, obtain the written consent (which may be by email) of such Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide such Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 3(p), (q) and (r), respectively, hereof, (iii) afford such Agent the opportunity to conduct a due diligence review in accordance with Section 3(u) hereof prior to filing such Earnings 8-K and (iv) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 2(j) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Section 3(p), (q) and (r), respectively, hereof, and (B) this Section 2(j) shall in no way affect or limit the operation of clause (i) of Section 2(i) hereof, which shall have independent application.
(k) The Agents shall not have any obligation to purchase Shares as principal, whether from the Company or otherwise, unless the Company and the Operating Partnership applicable Agent(s) agree as set forth below. Shares purchased from the Company by the applicable Agent(s), individually or in a syndicate, as principal shall be made in accordance with terms agreed upon between such Agent(s) and the Company as evidenced by a Terms Agreement. The commitment of the applicable Agents(s) to purchase Shares from the Company as principal shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation been made on the basis of the Manager to use its commercially reasonable efforts to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company Company, and the Operating Partnership herein, to the performance by the Company of its covenants and the Operating Partnership of their respective obligations hereunder other obligations, herein contained and shall be subject to the continuing satisfaction terms and conditions herein set forth. At the time of the additional conditions specified in Section 6 hereof.
(viii) Notwithstanding anything to the contrary hereineach Terms Agreement, the Manager applicable Agent(s) shall not sell specify the requirements, if any, for the officers’ certificate, opinions and letters of counsel and accountants’ letters pursuant to Section 3(p), (1q) Series A Preferred Shares at and (r), respectively, hereof. In the event of a price higher than conflict between the Series A Maximum Price. For the purposes hereofterms of this Equity Sales Agreement and a Terms Agreement, the “Series A Maximum Price” terms of such Terms Agreement shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salecontrol.
Appears in 1 contract
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, Agent acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares. The Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the following terms.
Company other than (iA) The by means of ordinary brokers’ transactions that qualify for delivery of a Prospectus to NASDAQ in accordance with Rule 153 under the 1933 Act (such transactions are hereinafter referred to as “At the Market Offerings”) and (B) such other sales of the Shares are to be sold on a daily basis or otherwise behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager Agent. The Agent covenants and agrees that it shall not engage in a sale of Shares on any day the Company’s behalf that (Awould constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act without the Company’s prior written consent. Subject to the previous sentence, the Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is a trading day for not an At the NYSE (other than a day on which Market Offering and the NYSE is scheduled Company consents to close prior such sale, the Company will provide to its regular weekday closing time)the Agent, (B) at the Agent’s request and upon reasonable advance notice to the Company, through any on or prior to the Settlement Date (as defined below) for such transaction, the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 hereof, each dated the individuals listed Settlement Date, and such other documents and information as authorized representatives of the Agent shall reasonably request. Solely with respect to such sales that would constitute a “block” or a “distribution,” the Agent shall use commercially reasonable efforts to assist the Company on Schedule B hereto in obtaining performance of its obligations by each purchaser whose offer to purchase Shares has been solicited by the Agent and accepted by the Company. Each time that the Company wishes to issue and sell Shares hereunder (the each, a “Authorized Company RepresentativesPlacement”), has instructed it will notify the Manager Agent by telephone email notice (confirmed promptly or other method mutually agreed to in writing by electronic mailthe parties) containing the parameters in accordance with which it desires Shares to make sales be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C any minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Schedule I. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule II (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Agent set forth on Schedule II, as such Schedule II may be amended from time to time. If the Agent wishes to accept such proposed terms included in the Placement Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same Business Day on which such Placement Notice is delivered to the Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Agent set forth on Schedule II) accepting such terms (the “Agent Acceptance”) or setting forth the terms that the Agent is willing to accept. Where the terms provided in the Placement Notice are proposed to be modified as provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Agent until the Company delivers to the Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the “Acceptance”), which email or other communication shall be addressed to all of the individuals from the Company and the Agent set forth on Schedule II and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Agent, on the same Business Day. The Placement Notice shall be effective upon receipt by the Company of the Agent Acceptance or, if modified as provided above, upon receipt by the Agent of the Company Acceptance, as the case may be, unless and until (i) the maximum number entire amount of the Shares to be sold covered by the Manager daily Acceptance have been sold, (ii) in accordance with the notice requirements set forth in Section 4(c), the Company suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) the Agreement has been terminated under the provisions of Section 9. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement unless and until the Company delivers a Placement Notice to the Agent and there occurs with respect thereto either (i) an Agent Acceptance or (ii) a Company Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the relevant Acceptance and herein. In the event of a conflict between the terms of this Agreement and the terms of an Acceptance, the terms of the Acceptance will control. Subject to the terms and conditions hereof, upon the existence of an Acceptance, the Agent shall use its commercially reasonable efforts to sell as agreed sales agent Shares designated in the Acceptance up to the amount specified, and otherwise in accordance with the terms of such Acceptance. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling Shares and (B) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
(b) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Agent as sales agent shall not be permitted to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in any event not a number in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makerBoard, or directly to any customer or client of a duly authorized committee thereof, and as set forth in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionapplicable Acceptance. In addition, the Company or the Manager Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering telecopy or email to all of the individuals of the other party set forth on Schedule II, which confirmation will be promptly acknowledged by the receiving party) suspend or refuse to undertake any sale of Shares designated in such Acceptance for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice. Each of the parties hereto agrees that no such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) effective against the other unless it originates from an individual named on Schedule II and 4(w) with respect is made to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination individuals of the Suspension Periodother party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time.
(iiic) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on NASDAQ or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be a maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. In lieu of the Company paying all compensation payable to the Agent for the sale of the Shares pursuant to this Agreement, the Adviser reserves the right to pay any portion of such compensation in its sole discretion. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vd) If acting as sales agent hereunder, the Manager The Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE NASDAQ each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales. For the avoidance of doubt, such written confirmation will be provided to the Company no later than the opening of trading on the immediately following trading day on NASDAQ.
(vie) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in Section 1 of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement, or (iii) authorized from time to time to be issued and sold under this Agreement and the KeyBanc Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s Board, or a duly authorized committee thereof, and notified to the Agent in writing as set forth in the applicable Placement Notice. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Agent shall calculate and provide in writing to the Company, on a monthly basis, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(f) Settlement for sales of Shares pursuant to this Section 3(a) 4 and made in accordance with the terms of the applicable Acceptance will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day for NASDAQ (other than a day on the NYSE which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the sale of Agent for settlement on such Shares date shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon against payments by the parties hereto, which Agent of the Net Proceeds from the sale of such Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable formsame day funds delivered to an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement DateDate pursuant to this Agreement, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viig) At each Time of SaleApplicable Time, each Settlement Date and each Representation Date (each, as such term is defined in Section 2(b), Section 3(a)(vi6(n) and Section 4(o) hereof, respectivelyherein), the Company Company, the Adviser and the Operating Partnership Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any The obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof4 of this Agreement.
(viiih) Notwithstanding anything The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Common Stock pursuant to this Agreement and the contrary hereinKeyBanc Agreement shall only be effected by or through only one of Agent or KeyBanc, as applicable, on any single given day as determined by the Manager Company, but in no event by more than one of them, and the Company shall not in no event request that more than one of Agent or KeyBanc sell (1) Series A Preferred Shares at a price higher than shares of Common Stock on the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of same day.
(i) $25.00 plus Except as may be mutually agreed by the Company and the Agent, the Company and the Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any accrued Shares that would be sold, and unpaid dividends per share tothe Agent shall not be obligated to sell, but excludingduring: the period that commences on the fifth (5th) business day prior to the Company’s filing of its quarterly report on Form 10-Q or annual report on Form 10-K, as applicable, and ending on the date on which the Company files with the Commission a Prospectus Supplement under Rule 497 relating to the Shares that includes (i) updated unaudited financial information as of the end of the Company’s most recent quarterly period (the “10-Q Filing”) or (ii) updated audited financial information as of the end of the Company’s most recent fiscal year (the “10-K Filing”), as applicable (each of a 10-Q Filing and/or a 10-K Filing shall also be referred to herein as a “Quarterly 497 Filing”). To the extent the Company releases its earnings for its most recent quarterly period or fiscal year, as applicable (an “Earnings Release”) before it files with the Commission its quarterly report on Form 10-Q for such quarterly period or annual report on Form 10-K for such fiscal year, as applicable, then the Agent and the Company agree that no sales of Shares shall take place for the period beginning on the date of sale the Earnings Release and (ii) 1.005; and (b) ending on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salethe applicable Quarterly 497 Filing. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Agent, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is in possession of material non-public information.
Appears in 1 contract
Samples: Equity Distribution Agreement (Gladstone Capital Corp)
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum NumberAmount), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”Offering (as defined below), including including, without limitation limitation, sales made directly by means of ordinary brokers’ transactions on the NYSE, on any other existing trading market for the Shares to or through a market makermaker at market prices prevailing at the time of sale, at prices related to prevailing market prices or directly at negotiated prices. Subject to any customer or client the terms and conditions of this Section 3(a), the Manager shall use its commercially reasonable efforts to offer and sell as sales agent all of the Manager. The Shares designated; provided, however, that the Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation, in the event that an offer or sale of the Shares on behalf of the Company may also sell Shares in the reasonable judgment of the Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes that it may be deemed to be an “underwriter” under the Act in a transaction that is other than by any other method permitted by law, including but not limited means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus in accordance with Rule 153 under the Act (such transactions are hereinafter referred to in privately negotiated transactionsas “At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(n), 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w4(q) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi3 (a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o4(n) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiib) If the Company wishes to issue and sell the Shares other than as set forth in Section 3(a) hereof (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Company, the Operating Partnership and the Manager will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate gross sales proceeds of the Shares sold pursuant to this Agreement exceed the lesser of (A) $100,000,000 and (B) the amount available for offer and sale under the Prospectus and the Registration Statement, nor shall the aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized to be sold under this Agreement by the Company’s Board of Directors, or a duly authorized committee thereof, and notified to the Manager in writing. Further, under no circumstances shall the aggregate gross sales proceeds from Shares sold pursuant to this Agreement together with the Shares sold pursuant to the Alternative Distribution Agreement, including any separate Terms Agreement or similar agreement covering principal transactions described herein and in the Alternative Distribution Agreement, exceed the Maximum Amount.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party, and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares through or to the Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Notwithstanding anything any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale of, any Shares and, by notice to the contrary hereinManager, shall cancel any instructions for the offer or sale of any Shares, and the Manager shall not be obligated to offer or sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereofany Shares, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of during (i) $25.00 plus any accrued and unpaid dividends per share toperiod in which the Company is, but excludingor could be deemed to be, the date in possession of sale and material non-public information or (ii) 1.005; during the fourteen (14) calendar days prior to any public announcement or release disclosing the Company’s results of operations or financial condition for a completed quarterly or annual fiscal period through and including the time that is 24 hours after the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such announcement or release.
(f) The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling the Shares, (ii) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell Shares in accordance with the terms of this Agreement, and (biii) the Manager shall be under no obligation to purchase Shares on October 5a principal basis pursuant to this Agreement unless a Terms Agreement, 2020 in form and thereaftersubstance mutually satisfactory to the Company, $25.00 plus the Operating Partnership and the Manager, shall have been executed by the Company, the Operating Partnership and the Manager.
(g) The Company agrees that any accrued and unpaid dividends per share tooffer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through the Manager or the Alternative Manager on any single given day, but excludingin no event by the Manager and the Alternative Manager, and the date of saleCompany shall in no event request that the Manager and the Alternative Manager sell Shares on the same day.
Appears in 1 contract
Samples: Equity Distribution Agreement (Education Realty Operating Partnership L P)
Sale and Delivery of Shares. (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 (1) to issue and sell through or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts consistent with its normal trading and sales practice to sell, as sales agent for the Company, the Shares, and (2) in consultation with the Forward Purchaser and the Manager, to instruct the Forward Purchaser to borrow, offer and sell Shares through the Manager, as forward seller, in each case on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations covenants and conditions under Section 4 and Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum NumberAmount, or in excess of the number of Shares approved for listing on the NYSE), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Such instruction shall also specify whether such Shares (i) will be sold through the Manager, as sales agent or principal, in accordance with clause 3(a)(1) above, or (ii) borrowed by the Forward Purchaser and sold through the Manager, as forward seller, in connection with hedging a forward stock purchase transaction pursuant to any Confirmations in accordance with clause 3(a)(2) above. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “At the Market Offering (as defined below), including, without limitation, sales made by means of ordinary brokers’ transactions on the NYSE, to or through a market maker at market prices prevailing at the markettime of sale, at prices related to prevailing market prices or at negotiated prices. Subject to the terms and conditions specified herein (including, without limitation, the accuracy of the representations and warranties of each of the Company and the Operating Partnership and the performance by the Company and the Operating Partnership of their respective covenants and other obligations, contained herein and the satisfaction of the additional conditions specified in Section 6 hereof), the Manager shall use its commercially reasonable efforts consistent with its normal trading and sales practice to offer and sell as sales agent all of the Shares designated; provided, however, that the Company acknowledges and agrees that neither the Manager nor the Forward Purchaser, as applicable, shall have any obligation to borrow, offer or sell any Shares in the event that a borrowing, offer or sale of the Shares on behalf of the Company or the Forward Purchaser may in the reasonable judgment of the Manager constitute the sale of a “block” offering as defined under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes that it may be deemed to be an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus in accordance with Rule 415 153 under the Act (such transactions are hereinafter referred to individually as an “At the Market Offering” and collectively as the “At the Market Offerings”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder sold, or with respect to Shares that the Company has agreed to sell or the Forward Purchaser has agreed to borrow and deliver pursuant to this Agreement, any Confirmation or Terms Agreement prior to the giving of such notice and providednotice, and, provided further, that there shall be no obligations under Sections 4(n), 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w4(q) with respect to the delivery of certificates, opinions, or comfort letters to the Manager and the Forward Purchaser during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Each of the Manager and the Forward Purchaser, as applicable, hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The In connection with sales pursuant to Section 3(a)(1) of this Agreement, the compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). In connection with sales pursuant to Section 3(a)(2) of this Agreement, the compensation payable to the Manager for sales of Shares with respect to which the Manager acts as forward seller shall be reflected in a reduction of an amount not to exceed 2.0% of the Initial Forward Price (as such term is defined in each applicable Confirmation). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company or the Forward Purchaser, as applicable, from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the aggregate Net Proceeds to the CompanyCompany or the Forward Purchaser, as applicable, and (iii) the aggregate compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made made, unless another date shall be agreed to in writing by the Company and the Manager. On each date of settlement for the sale of Shares through the Manager as sales agent pursuant to Section 3(a)(1) hereof (each such date, a “Direct Settlement Date”). On , or through the Manager as forward seller pursuant to Section 3(a)(2) hereof (each such date, a “Forward Settlement Date” and, together with a Direct Settlement Date, a “Settlement Date”), the Net Proceeds from the sale of such Shares shall be delivered to the Company or the Forward Purchaser, as applicable, in same day funds to an account designated by the Company or the Forward Purchaser, as applicable, in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company (or its transfer agent agent) or the Forward Purchaser, as applicable, to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares through the Manager as sales agent on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o4(n) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiib) If the Company wishes to borrow or issue and sell the Shares other than as set forth in Section 3(a) hereof (each, a “Transaction”), it will notify the Manager and the Forward Purchaser, as applicable, of the proposed terms of such Transaction. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Company and the Manager will enter into a Terms Agreement or the Company and the Forward Purchaser will enter into a Confirmation setting forth the terms of such Transaction. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement or Confirmation, as applicable, the terms of such Terms Agreement or Confirmation, as applicable, will control.
(i) Under no circumstances shall the aggregate gross sales proceeds of the Shares sold pursuant to this Agreement exceed the lesser of (A) $200,000,000 and (B) the amount available for offer and sale under the Prospectus and the Registration Statement, nor shall the aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized to be sold under this Agreement by the Company’s Board of Directors, or a duly authorized committee thereof, and notified to the Manager in writing. Further, under no circumstances shall the aggregate gross sales proceeds from Shares sold pursuant to this Agreement together with the Shares sold pursuant to the Alternative Distribution Agreement, including any separate Terms Agreement or similar agreement covering principal transactions described herein and in the Alternative Distribution Agreement, exceed the Maximum Amount.
(ii) If any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other parties hereto, and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares through or to the Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Notwithstanding anything any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale of, any Shares and, by notice to the contrary hereinManager, shall cancel any instructions for the offer or sale of any Shares, and the Manager shall not be obligated to offer or sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereofany Shares, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of during (i) $25.00 plus any accrued and unpaid dividends per share toperiod in which the Company is, but excludingor could be deemed to be, the date in possession of sale and material non-public information or (ii) 1.005; during the fourteen (14) calendar days prior to any public announcement or release disclosing the Company’s results of operations or financial condition for a completed quarterly or annual fiscal period through and including the time that is 24 hours after the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such announcement or release.
(f) The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling the Shares, (ii) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell Shares in accordance with the terms of this Agreement, and (biii) the Manager shall be under no obligation to purchase Shares on October 5a principal basis pursuant to this Agreement unless a Terms Agreement, 2020 in substantially the form attached hereto as Exhibit A, shall have been executed by the Company, the Operating Partnership and thereafterthe Manager.
(g) The Company agrees that any offer to sell, $25.00 plus any accrued solicitation of an offer to buy, or any sales of Shares shall only be effected by or through the Manager or the Alternative Manager on any single given day, but in no event by the Manager and unpaid dividends the Alternative Manager, and the Company shall in no event request that the Manager and the Alternative Manager sell Shares on the same day.
(h) As set out in Paragraph 7(f)(i) under the Confirmation and notwithstanding anything herein to the contrary, in the event that either (i) the Forward Purchaser is unable to borrow and deliver any Shares for sale under this Agreement or (ii) in the commercially reasonable judgment of the Forward Purchaser, it is either impracticable to do so or the Forward Purchaser would incur a stock loan cost that is equal to or greater than 200 basis points per share annum to do so, then the Manager shall be required to sell on behalf of the Forward Purchaser only the aggregate number of Shares that the Forward Purchaser is able to, but excludingand that it is practicable to, the date of saleso borrow below such cost.
Appears in 1 contract
Samples: Equity Distribution Agreement (Education Realty Operating Partnership L P)
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum NumberAmount), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”Offering (as defined below), including including, without limitation limitation, sales made directly by means of ordinary brokers’ transactions on the NYSE, on any other existing trading market for the Shares to or through a market makermaker at market prices prevailing at the time of sale, at prices related to prevailing market prices or directly at negotiated prices. Subject to any customer or client the terms and conditions of this Section 3(a), the Manager shall use its commercially reasonable efforts to offer and sell as sales agent all of the Manager. The Shares designated; provided, however, that the Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation, in the event that an offer or sale of the Shares on behalf of the Company may also sell Shares in the reasonable judgment of the Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes that it may be deemed to be an “underwriter” under the Act in a transaction that is other than by any other method permitted by law, including but not limited means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus in accordance with Rule 153 under the Act (such transactions are hereinafter referred to in privately negotiated transactionsas “At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(n), 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w4(q) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi3 (a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o4(n) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiib) If the Company wishes to issue and sell the Shares other than as set forth in Section 3(a) hereof (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Company, the Operating Partnership and the Manager will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate gross sales proceeds of the Shares sold pursuant to this Agreement exceed the lesser of (A) $200,000,000 and (B) the amount available for offer and sale under the Prospectus and the Registration Statement, nor shall the aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized to be sold under this Agreement by the Company’s Board of Directors, or a duly authorized committee thereof, and notified to the Manager in writing. Further, under no circumstances shall the aggregate gross sales proceeds from Shares sold pursuant to this Agreement together with the Shares sold pursuant to the Alternative Distribution Agreement, including any separate Terms Agreement or similar agreement covering principal transactions described herein and in the Alternative Distribution Agreement, exceed the Maximum Amount.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party, and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares through or to the Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Notwithstanding anything any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale of, any Shares and, by notice to the contrary hereinManager, shall cancel any instructions for the offer or sale of any Shares, and the Manager shall not be obligated to offer or sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereofany Shares, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of during (i) $25.00 plus any accrued and unpaid dividends per share toperiod in which the Company is, but excludingor could be deemed to be, the date in possession of sale and material non-public information or (ii) 1.005; during the fourteen (14) calendar days prior to any public announcement or release disclosing the Company’s results of operations or financial condition for a completed quarterly or annual fiscal period through and including the time that is 24 hours after the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such announcement or release.
(f) The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling the Shares, (ii) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell Shares in accordance with the terms of this Agreement, and (biii) the Manager shall be under no obligation to purchase Shares on October 5a principal basis pursuant to this Agreement unless a Terms Agreement, 2020 in form and thereaftersubstance mutually satisfactory to the Company, $25.00 plus the Operating Partnership and the Manager, shall have been executed by the Company, the Operating Partnership and the Manager.
(g) The Company agrees that any accrued and unpaid dividends per share tooffer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through the Manager or the Alternative Manager on any single given day, but excludingin no event by the Manager and the Alternative Manager, and the date of saleCompany shall in no event request that the Manager and the Alternative Manager sell Shares on the same day.
Appears in 1 contract
Samples: Equity Distribution Agreement (Education Realty Operating Partnership L P)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company will issue and agrees to issue and sell Shares from time to time through or to the Manager, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.:
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager on any day that (A) is a trading day for the NYSE NASDAQ (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Trading Market”), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, the Manager shall use its reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Stock sold by the Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on the Trading Market at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized The Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, acknowledges and agrees that (A) such Suspension Period shall apply equally to there can be no assurance that the Manager and each Alternative Manager and will be successful in selling the Shares, (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental will incur no liability or self-regulatory organization in respect of such sales, shall constitute the net proceeds obligation to the Company from the sale of such or any other person or entity if it does not sell Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be for any reason other than a failure by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares on behalf of the Company shall be subject to the continuing accuracy of the representations as required under this Agreement, and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiiC) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred be under no obligation to purchase Shares at on a price higher than the Series A Maximum Price. For the purposes hereofprincipal basis pursuant to this Agreement, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.except as
Appears in 1 contract
Samples: At the Market Program Agreement (China Direct Industries, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the ManagerManagers, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagents, and the each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the applicable Manager on any day that (A) is a trading day for the NYSE Nasdaq Global Select Market (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Nasdaq”), (B) the Company, through any of the individuals listed as an authorized representatives representative of the Company on Schedule B I hereto (which such Schedule I may be amended by the “Authorized Company Representatives”from time to time by written notice to the Managers), has instructed the such Manager by telephone (or electronic mail, which order shall be confirmed promptly by such Manager (and accepted by the Company) by electronic mail) mail to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement; provided, however, the Company may sell the Shares through only one Manager in any single trading day. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the such Manager daily as agreed to by the such Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, such Manager shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Stock sold by such Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on Nasdaq at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized The Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, acknowledges and agrees that (A) such Suspension Period shall apply equally to there can be no assurance that the applicable Manager and each Alternative Manager and will be successful in selling the Shares, (B) such Suspension Period shall not affect Manager will incur no liability or impair the parties’ respective obligations with respect to Shares sold hereunder prior obligation to the giving of Company or any other person or entity if it does not sell Shares for any reason other than a failure by such notice Manager to use commercially reasonable efforts consistent with its normal trading and providedsales practices and applicable law and regulations to sell such Shares as required under this Agreement, further, that there and (C) such Manager shall be under no obligations under Sections 4(o)obligation to purchase Shares on a principal basis pursuant to this Agreement, 4(p), 4(q), 4(r), 4(s) except as otherwise specifically agreed by such Manager and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension PeriodCompany.
(iii) The Company shall not authorize the issuance and sale of, and the applicable Manager shall not be obligated to use its commercially reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to such Manager in writing.
(iv) Each Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At ordinary brokers’ transactions between members of Nasdaq that qualify for delivery of a Prospectus to Nasdaq in accordance with Rule 153 under the Market Offerings Securities Act and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Managerapplicable Manager pursuant to a Terms Agreement.
(ivv) The compensation to the Manager, as an agent of the Company, a Manager for sales of the Shares with respect to which such Manager act as sales agent under this Agreement shall be at a mutually agreed rate, not up to exceed 2.01.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) (such compensation, the “Manager Compensation”) and payable as described in the succeeding subsection (vii) below. The remaining proceedsforegoing rate of compensation shall not apply when a Manager acts as principal, in which case the Company may sell Shares to such Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement.
(vi) The Managers shall provide written confirmation (which may be by facsimile or electronic mail) to the Company following the close of trading on Nasdaq each day in which the Shares are sold under this Section 3(a) setting forth the number of the Shares sold on such day, the aggregate gross sales proceeds and the Net Proceeds (as defined below) to the Company, and the compensation payable by the Company to the Managers with respect to such sales.
(vii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day following the date on which such sales are made (each such day, a “Settlement Date”), or on some other date that is agreed upon by the Company and a Manager in connection with a particular transaction. On each Settlement Date, the Shares sold through the Managers for settlement on such date shall be issued and delivered by the Company to the Managers against payment of the proceeds for the sale of such Shares. The amount of proceeds to be delivered to the Company on a Settlement Date against receipt of the Shares sold will be equal to (i) the aggregate offering price received by the Managers at which such Shares sold (the “Gross Proceeds”), after further deduction for (A) the Manager Compensation, (B) any other amounts due and payable by the Company to the Managers hereunder pursuant to Section 5 hereof, and (C) any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”) (such net amount, shall constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, or (ii) the Net Gross Proceeds. In the event that a Manager delivers the Gross Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also at a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from amounts set forth in clauses (i)(A), (B) and (C) of the sale of such Shares preceding sentence shall be delivered set forth and invoiced in a periodic statement from such Manager to the Company in same day funds to an account designated and payment of such amounts shall be made promptly by the Company in writing prior to such Settlement Date against after its receipt of the Shares soldthereof. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the such Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager Managers harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the such Manager any commission to which it would otherwise be entitled absent such default. The Authorized If any Manager breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, such Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)such Manager.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi4(k) and each Filing Date (as defined in Section 4(o) hereof, respectively4(w)), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the any Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiiix) Notwithstanding anything to the contrary hereinany other provision of this Agreement, the Company shall not request the sale of any Shares that would be sold, and a Manager shall not be obligated to sell (1) Series A Preferred during any period in which the Company is, or could reasonably be deemed to be, in possession of material non-public information; provided, however, that if the Company wishes to offer or sell Shares to a Manager as sales agent at a price higher than the Series A Maximum Price. For the purposes hereofany time during such period, the Company shall file with the Commission, to the extent necessary, such material non-public information.
(x) The Company or such Manager (with respect to itself only) may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend or terminate an offering of the Shares for any reason and at any time; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(b) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (each, a “Series A Maximum Price” shall mean: Placement”), it will notify the Manager or Managers of the proposed terms of such Placement. If such Manager or Managers, acting as principal, wishes to accept such proposed terms (awhich it may decline to do for any reason in its sole discretion) through October 4or, 2020following discussions with the Company wishes to accept amended terms, such Manager or Managers and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or such Manager or Managers unless and until the Company and such Manager or Managers have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the product terms of such Terms Agreement will control.
(c) Each sale of the Shares to a Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, such Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by a Manager. The commitment of the Managers to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by a Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, managers acting together with such Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by such Manager.
(d) Under no circumstances shall the number and aggregate amount of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) $25.00 plus any accrued and unpaid dividends per share tothe aggregate amount set forth in Section 1, but excluding, the date of sale and (ii) 1.005; the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and (b) on October 5aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, 2020 or a duly authorized committee thereof, and thereafternotified to the Managers in writing. The Company shall have responsibility for maintaining records with respect to the aggregate number of Shares sold and for otherwise monitoring the availability of Shares for sale under the Registration Statement and for insuring that the aggregate number of Shares offered and sold does not exceed, $25.00 plus and the price at which any accrued and unpaid dividends per share to, but excludingShares are offered or sold is not lower than, the date aggregate number of saleShares and the minimum price authorized from time to time by the Company’s board of directors or, if permitted by applicable law and the Company’s charter and by-laws, a duly authorized committee thereof.
(e) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding any other provision of this Agreement the Company shall not request the sale of any Shares that would be sold, and any Manager shall not be obligated to sell, during any period in which the Company is, or could reasonably be deemed to be, in possession of material non-public information.
Appears in 1 contract
Samples: Equity Distribution Agreement (United Airlines, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, Agent acting as sales agent and/or principaland the Agent agrees to use its commercially reasonable efforts to sell as sales agent for the Company, the Shares. The Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company other than (A) by means of ordinary brokers’ transactions that qualify for delivery of a Prospectus to NASDAQ in accordance with Rule 153 under the 1933 Act (such transactions are hereinafter referred to as “At the Market Offerings”) and when it provides instructions, (B) such other sales of the Shares on behalf of the Company in its discretion, for capacity as agent of the Company as shall be agreed by the Company and the Agent. The Agent covenants and agrees that it shall not engage in a sale of Shares on the Company's behalf that would constitute the sale of a "block" under Rule 10b-18(a)(5) under the SharesExchange Act or a "distribution" within the meaning of Rule 100 of Regulation M under the Exchange Act without the Company's prior written consent. Subject to the previous sentence, the Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is not an At the Market Offering and the Company consents to such sale, the Company will provide to the Agent, at the Agent’s request and upon reasonable advance notice to the Company, on or prior to the Settlement Date (as defined below) for such transaction, the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 hereof, each dated the Settlement Date, and such other documents and information as the Agent shall reasonably request. Solely with respect to such sales that would constitute a "block" or a "distribution," the Agent shall use commercially reasonable efforts to assist the Company in obtaining performance of its obligations by each purchaser whose offer to purchase Shares has been solicited by the Agent and accepted by the Company. Each time that the Company wishes to issue and sell Shares hereunder (each, a “Placement”), it will notify the Agent by email notice (or other method mutually agreed to in writing by the parties) containing the parameters in accordance with which it desires Shares to be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Schedule I. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule II (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Agent set forth on Schedule II, as such Schedule II may be amended from time to time. If the Agent wishes to accept such proposed terms included in the Placement Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same Business Day on which such Placement Notice is delivered to the Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Agent set forth on Schedule II) accepting such terms (the "Agent Acceptance") or setting forth the terms that the Agent is willing to accept. Where the terms provided in the Placement Notice are proposed to be modified as provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Agent until the Company delivers to the Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the "Acceptance"), which email or other communication shall be addressed to all of the individuals from the Company and the Agent set forth on Schedule II and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Agent, on the same Business Day. The Placement Notice shall be effective upon receipt by the Company of the Agent Acceptance or, if modified as provided above, upon receipt by the Agent of the Company Acceptance, as the case may be, unless and until (i) the entire amount of the Shares covered by the Acceptance have been sold, (ii) in accordance with the notice requirements set forth in Section 4(c), the Company suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) the Agreement has been terminated under the provisions of Section 9. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement unless and until the Company delivers a Placement Notice to the Agent and there occurs with respect thereto either (i) an Agent Acceptance or (ii) a Company Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the relevant Acceptance and herein. In the event of a conflict between the terms of this Agreement and the terms of an Acceptance, the terms of the Acceptance will control. Subject to the terms and conditions hereof, upon the existence of an Acceptance, the Agent shall use its commercially reasonable efforts to sell as sales agent Shares designated in the Acceptance up to the amount specified, and otherwise in accordance with the terms of such Acceptance. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling Shares and (B) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
(b) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Manager agrees Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, as sales agent for the Company, the any Shares on the following terms.
(i) The Shares are at a price lower than the minimum price therefor authorized from time to be sold on a daily basis time, or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (Aii) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makerBoard, or directly to any customer or client of a duly authorized committee thereof, and as set forth in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionapplicable Acceptance. In addition, the Company or the Manager Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering telecopy or email to all of the individuals of the other party set forth on Schedule II, which confirmation will be promptly acknowledged by the receiving party) suspend or refuse to undertake any sale of Shares designated in such Acceptance for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice. Each of the parties hereto agrees that no such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) effective against the other unless it originates from an individual named on Schedule II and 4(w) with respect is made to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination individuals of the Suspension Periodother party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time.
(iiic) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on NASDAQ or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be equal to 2% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vd) If acting as sales agent hereunder, the Manager The Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE NASDAQ each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales. For the avoidance of doubt, such written confirmation will be provided to the Company no later than the opening of trading on the immediately following trading day on NASDAQ.
(vie) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in Section 1 of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement, the KeyBanc Agreement and the BMO Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s Board, or a duly authorized committee thereof, and notified to the Agent in writing as set forth in the applicable Placement Notice. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Agent shall calculate and provide in writing to the Company, on a monthly basis, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(f) Settlement for sales of Shares pursuant to this Section 3(a) 4 and made in accordance with the terms of the applicable Acceptance will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day for NASDAQ (other than a day on the NYSE which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the sale of Agent for settlement on such Shares date shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon against payments by the parties hereto, which Agent of the Net Proceeds from the sale of such Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable formsame day funds delivered to an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viig) At each Time of SaleApplicable Time, each Settlement Date and each Representation Date (each, as such term is defined in Section 2(b), Section 3(a)(vi6(n) and Section 4(o) hereof, respectivelyherein), the Company Company, the Adviser and the Operating Partnership Administrator shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any The obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof4 of this Agreement.
(viiih) Notwithstanding anything The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Common Stock or any other equity security of the contrary hereinCompany pursuant to this Agreement shall only be effected by or through only one of Agent, KeyBanc or BMO on any single given day, but in no event by more than one of them, and the Manager Company shall not in no event request that more than one of Agent, KeyBanc or BMO sell (1) Series A Preferred Shares at a price higher than shares of Common Stock on the Series A Maximum Price. For the purposes hereofsame day; provided, the “Series A Maximum Price” shall mean: (a) through October 4however, 2020, the product of that (i) $25.00 plus any accrued and unpaid dividends per share to, but excludingthe foregoing limitation shall not apply to sales solely to employees of the Company, the date Adviser, the Administrator or their respective affiliates, or to a trustee or other person acquiring such securities for the accounts of sale such persons and (ii) 1.005; such limitation shall not apply on any day during which no sales are made pursuant to this Agreement.
(i) Except as may be mutually agreed by the Company and the Agent the Company and the Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, (i) with respect to the Company’s quarterly filings on Form 10-Q, during any period commencing upon the 30th day following the end of each fiscal quarter and ending on the date on which the Company files with the Commission a Prospectus Supplement under Rule 497 relating to the Shares that includes updated financial information as of the end of the Company’s most recent quarterly period (the “10-Q Filing”) and (bii) with respect to the Company’s annual report filings on October 5Form 10-K, 2020 during any period commencing upon the 50th day following the end of the Company’s fiscal year and thereafterending on the date on which the Company files with the Commission a Prospectus Supplement under Rule 497 relating to the Shares that includes updated audited financial information as of the end of the Company’s most recent fiscal year (the “10-K Filing”) (each of a 10-Q Filing and/or a 10-K Filing shall also be referred to herein as a “Quarterly 497 Filing”). To the extent the Company releases its earnings for its most recent quarterly period or fiscal year, $25.00 plus any accrued as applicable (an “Earnings Release”) before it files with the Commission its quarterly report on Form 10-Q for such quarterly period or annual repot on Form 10-K for such fiscal year, as applicable, then the Agent and unpaid dividends per share to, but excluding, the Company agree that no sales of Shares shall take place for the period beginning on the date of salethe Earnings Release and ending on the date of the applicable Quarterly 497 Filing. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Agent, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is in possession of material non-public information.
Appears in 1 contract
Samples: Equity Distribution Agreement (Prospect Capital Corp)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject (i) Subject to the terms and conditions herein set forthforth herein, the Company agrees to may issue and sell Shares through or to the ManagerAgent, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts to sell, acting as sales agent for the Company, or directly to the Shares on the following termsAgent, acting as principal, from time to time (any such sale, a “Direct Sale”).
(iii) In addition, subject to the terms and conditions set forth herein, the Company may, from time to time, in consultation with the Forward Purchaser and the Agent, instruct the Forward Purchaser or its affiliate to borrow, offer and sell Shares to or through the Agent, acting as forward seller (any such sale, a “Forward Sale”). The Agent agrees, when acting as sales agent, to use its reasonable efforts to sell the Shares under a Forward Sale in the manner contemplated by the General Disclosure Package.
(b) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and Company, the Manager Agent and, if applicable, the Forward Purchaser on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (Beach, a “Trading Day”) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) that the Company has satisfied its obligations under Section 6 hereof4 of this Agreement and that the Company has instructed the Agent to make such sales. The Company will designate On any Trading Day, the Company, in a notice delivered consultation with the Agent and, if applicable, the Forward Purchaser, may instruct the Agent by electronic mail telephone (confirmed promptly by telecopy or email, which confirmation shall contain the mutually agreed upon terms for the sales and such confirmation shall be promptly acknowledged by the Agent) (together, the “Instruction”) as to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”i) the maximum number amount of Shares to be sold by the Manager daily as agreed to by the Manager Agent on such day (in any event not in excess of the amount then available for issuance sale under the Prospectus and the currently effective Registration Statement Statement), (ii) the minimum price per Share at which such Shares may be sold, (iii) whether the sale of such Shares will be a Direct Sale or a Forward Sale, and (iv) in the case of a Forward Sale, any terms, provisions or information that is required or contemplated by the Master Confirmation (including, without limitation, any Forward Price Reduction Dates and related Forward Price Reduction Amounts, any Discount to the Initial Forward Price (as defined in the Master Confirmation) and the amount, timing, record dates and ex-dividend dates of any planned dividends or distributions). Subject to the terms and conditions hereof, when acting as sales agent, the Agent shall use its commercially reasonable efforts to sell for the Forward Purchaser or its affiliate (in the case of a Forward Sale) or for the Company (in the case of a Direct Sale) all of the Shares so designated by the Company and in the manner contemplated by the General Disclosure Package. The Company, the Forward Purchaser and the Agent each acknowledges and agrees that (A) there can be no assurance that the Agent will be successful in selling the Shares or that the Forward Purchaser or any of its affiliates will be successful in borrowing any Shares, (B) the Agent will incur no liability or obligation to the Company, the Forward Purchaser or any other person or entity if it does not sell Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement, and (C) the Agent shall be under no obligation to purchase Shares on a principal basis, except as expressly agreed by the Agent in a Terms Agreement.
(c) Notwithstanding the foregoing, the Company shall not authorize the sale of, and the Agent shall not be obligated to use its commercially reasonable efforts to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time or (ii) having an amount aggregate offering price in excess of the amount aggregate offering price of Shares authorized from time to time to be issued and sold under this Agreement, in each case, by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, the Company or the Agent may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged), suspend the offering of the Shares for any reason and at any time; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Under no circumstances shall the aggregate offering price of Shares sold pursuant to this Agreement orand the Additional Equity Distribution Agreements exceed the Maximum Program Amount or the aggregate offering price of Common Stock available for sale under the currently effective Registration Statement. Notwithstanding any of the provisions of this Agreement, together if in the event of any Forward Sale either (i) the Forward Purchaser or its affiliate is unable to borrow and deliver any Shares for sale under this Agreement or (ii) in the sole judgment of the Forward Purchaser or its affiliate, it is either impracticable to do so or the Forward Purchaser or its affiliate would incur a stock loan cost that is equal to or greater than 75 basis points per annum to do so, then the Agent shall only be required to sell on behalf of the Forward Purchaser or its affiliate the aggregate number of Shares that the Forward Purchaser or its affiliate is able to, and that it is practicable to, so borrow below such cost.
(d) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares pursuant to this Agreement or the Additional Equity Distribution Agreements shall be effected by or through only one of the Agent or the Additional Agents on any single day, but in no event by more than one, and the Company shall in no event request that the Agent and the Additional Agents sell Shares on the same day.
(e) If any party reasonably believes that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 1934 Act are not satisfied with all respect to the Company or the Shares, it shall promptly notify the other party or parties and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) The Shares, when sold through the Agent as sales agent, may be offered and sold in (1) privately negotiated transactions (if and only if the Alternative Distribution Agreements, parties hereto have so agreed in an amount in excess of the Maximum Numberwriting), any minimum price below which sales of Shares may not be effected and or (2) by any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under of the Act (an “At the Market Offering”)Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares NYSE or sales made to or through a market makermaker or through an electronic communications network. Nothing in this Agreement shall be deemed to require any party to agree to the method of offer and sale specified in clause (1) above, or directly to and any customer or client of the Manager. The Manager party may also sell Shares by any other method permitted by law, including but not limited to withhold its consent thereto in privately negotiated transactionssuch party’s sole discretion.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iiig) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(aAgreement shall be the market or other price agreed to by the Company and the Agent for Shares sold by the Agent under this Agreement at the time of such sale, or as otherwise provided in an applicable Terms Agreement (the “Gross Proceeds”). The remaining proceedscompensation payable to the Agent for sales of Shares shall be (i) in connection with any Direct Sale, after further deduction up to 2.00% of the gross sales price for such Shares, as mutually agreed to in writing by the Company and the Agent (the “Direct Sale Compensation”) or (ii) in connection with any transaction fees imposed Forward Sale, the difference between the Gross Proceeds and the amount payable by the Forward Purchaser to the Company under the Master Confirmation, assuming full physical settlement of the Master Confirmation based on the Initial Forward Price. The amount payable (i) by the Agent to the Company in connection with any governmental Direct Sale, shall be the Gross Proceeds less the Direct Sale Compensation or self-regulatory organization (ii) by the Forward Purchaser to the Company in respect connection with any Forward Sale, shall be determined pursuant to the Master Confirmation and the Instruction or the Terms Agreement, as the case may be, assuming full physical settlement of such salesthe Master Confirmation based on the Initial Forward Price, subject to the price adjustment and other provisions of the Master Confirmation, and shall constitute the net proceeds to the Company from the sale of for such Shares sales (in each case, the “Net Proceeds”).
(vh) If acting as sales agent hereunder, the Manager The Agent shall provide written confirmation to the Company (which may be by electronic mailtelecopy or email) as soon as is reasonably practicable to the Company following the close of trading on the NYSE each day on which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the price or prices at which such Shares were sold on such day, the aggregate Gross Proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales.
(vii) Settlement for sales of Shares pursuant to this Section 3(a) 2 will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent (each such dateday, a “Settlement Date”). On each Settlement Date for any Direct Sale (each such day, a “Direct Settlement Date”), such Shares (the “Direct Settlement Shares”) shall be delivered by the Company to the Agent in book-entry form to the Agent’s account at The Depository Trust Company against payment by the Agent of the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds delivered to an account designated by the Company in writing prior to such Company. On each Settlement Date against receipt of for any Forward Sale, the Shares sold. Settlement sold through the Agent for all settlement on such Shares date shall be effected by free delivery of the Shares delivered by the Company Forward Purchaser or its transfer agent affiliate to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formAgent. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver Shares through the Shares Agent as sales agent on any Direct Settlement Date, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viij) At each Time Notwithstanding any other provision of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)this Agreement, the Company and the Operating Partnership Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, (A) during any period starting on the tenth day of each fiscal quarter of the Company and ending on the day on which the Company’s xxxxxxx xxxxxxx policy, as then in existence, does not prohibit the purchases or sales of the Company’s Common Stock by its officers or directors (except to the extent that the Company is not in possession of material non-public information during the first five days of such period), (B) during any other period in which the Prospectus or any amendment or supplement thereto includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) during any period in which the Company is in possession of material non-public information.
(k) At each Applicable Time and on each Settlement Date, each date the Registration Statement or the Prospectus shall be amended or supplemented (other than a prospectus supplement to the Prospectus included as part of the Registration Statement filed pursuant to Rule 424(b) of the 1933 Act Regulations relating solely to the offering of securities other than the Shares) (a “Registration Statement Amendment Date”) and each date the Company files an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q or an amendment to any such document (a “Company Periodic Report Date”), the Company shall be deemed to have affirmed each representation and warranty (except for the representation and warranty in Section 1(l) hereof, which the Company shall be deemed to have affirmed only at each Company Periodic Report Date) and its compliance with each covenant and other agreement contained in this Agreement (unless the Company shall have notified the Agent to the contrary in writing). The Company shall cause a senior corporate officer of the Company from time to time designated by the Company (which senior corporate officer shall initially be a senior corporate officer holding one of the offices specified in Exhibit B hereto) to respond via electronic mail to a communication from the Agent in the form set forth in Exhibit B hereto when, during the term of this Agreement, the Company shall have received such a communication. Any obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company Forward Purchaser or its affiliate or the Company, as applicable, shall be subject to to, as determined in the reasonable discretion of the Agent, the continuing accuracy of the representations and warranties of the Company, the compliance by the Company and the Operating Partnership with each covenant contained herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof4 of this Agreement.
(viiil) Notwithstanding anything The Agent shall not have any obligation to purchase Shares as principal, whether from the Company or otherwise, unless the Company and the Agent agree as set forth below. Shares purchased from the Company by the Agent, as principal, shall be purchased in accordance with terms agreed upon between the Agent and the Company as evidenced by a Terms Agreement. The Agent’s commitment to purchase Shares from the Company as principal shall be deemed to have been made on the basis of the accuracy of the representations and warranties of the Company, and performance by the Company of its covenants and other obligations, herein contained and shall be subject to the contrary hereinterms and conditions herein set forth. At the time of each Terms Agreement, the Manager Agent shall not sell (1specify the requirements, if any, for the officers’ certificate, opinions and letters of counsel and accountants’ letter pursuant to Sections 4(c), 4(d), 4(e) Series A Preferred Shares at and 4(f) hereof. In the event of a price higher than conflict between the Series A Maximum Price. For the purposes hereofterms of this Agreement and a Terms Agreement, the “Series A Maximum Price” terms of such Terms Agreement shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salecontrol.
Appears in 1 contract
Samples: Equity Distribution Agreement (Affiliated Managers Group, Inc.)
Sale and Delivery of Shares. (ai) On Subject to the basis terms and conditions set forth herein, the Company may issue and sell Shares through any applicable Agent acting as sales agent or directly to the applicable Agent acting as principal from time to time. Sales of the representationsShares, warranties and agreements herein containedif any, but through an Agent acting as sales agent or directly to an Agent acting as principal will be made by means of ordinary brokers’ transactions on the New York Stock Exchange (the “NYSE”), in negotiated transactions or in transactions that are deemed to be “at-the-market” offerings as defined in Rule 415 under the 1933 Act, including sales made to or through a market maker other than on an exchange, in block transactions or by any other method permitted by law, at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices.
(ii) In addition, subject to the terms and conditions set forth herein set forthand provided that the Company enters into a Confirmation with a Forward Purchaser with respect to a relevant Forward in accordance with Section 2(b), the Company agrees may, in consultation with the Forward Purchaser and the applicable Agent, instruct such Agent, acting as forward seller on behalf of such Forward Purchaser, to issue offer and sell through or the Shares borrowed by such Forward Purchaser from third parties to hedge such Forward Purchaser’s exposure under the ManagerForward, as sales agent and/or principal, contemplated by the relevant Forward Instruction Notice (as and when it provides instructions, defined in its discretion, for the sale Section 2(b)). Sales of the Shares, and if any, through the Manager agrees to use its commercially reasonable efforts to sell, Agents acting as sales agent forward seller for the Company, the Shares Forward Purchasers will be made by means of ordinary brokers’ transactions on the following termsNYSE in negotiated transactions or in transactions that are deemed to be “at-the-market” offerings as defined in Rule 415 under the 1933 Act, including sales made to or through a market maker other than on an exchange, in block transactions or by any other method permitted by law, at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices.
(ib) The Such instructions may be given and the Shares are to may be sold through an Agent on a daily an agented basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)) (each, a “Trading Day”) on which (Bi) the Company has instructed such Agent to make such sales, on behalf of the Company or on behalf of the applicable Forward Purchaser as forward seller and (ii) the Company has satisfied or such Agent (and if applicable, such Forward Purchaser) has waived the covenants and conditions specified in Sections 4 and 5 hereof. On any Trading Day, the Company may sell Shares through only one Agent; provided that the foregoing shall not prohibit the Company and the Operating Partnership from entering into a Terms Agreement with two or more Agents providing for such Agents, each acting severally as principal, to offer and sell Shares set forth in the Terms Agreements or prohibit or limit in any respect the offer or sale of Shares purchased by any Agent, as principal, from the Company pursuant to a Terms Agreement. If the Company determines to sell Shares through an Agent, it shall (i) in the case of sales on behalf of the Company, through any of instruct the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager applicable Agent by telephone (confirmed promptly by electronic mailfacsimile transmission or email, which confirmation will be promptly acknowledged by such Agent) as to make the maximum number and the maximum aggregate gross sales price of Shares to be sold on such Trading Day and the minimum price per Share at which such Shares may be sold, or (Cii) in the case of a Forward, propose to the applicable Forward Purchaser and such Agent acting as forward seller, by delivery of an instruction by email, to execute a Forward with the parameters specified in the next sentence. If the Company has satisfied its obligations under desires that a Forward Purchaser enter into a Confirmation and that the applicable Agent sell Forward Hedge Shares as forward seller on behalf of such Forward Purchaser pursuant to such Confirmation in accordance with Section 6 hereof. The Company will designate in a notice delivered by electronic mail to 2(a)(ii), the Manager Company’s instruction shall be substantially in the form attached hereto set forth in Annex II (or such other form as Schedule C the Company, such Forward Purchaser and the relevant Agent shall agree) (a the “Placement Forward Instruction Notice”) and shall include: (A) the maximum number number, maximum aggregate gross sales price and minimum sales price per share of Forward Hedge Shares to be sold by the Manager daily as agreed to by relevant Agent over the Manager Forward Hedge Selling Period specified in such Forward Instruction Notice (such maximum aggregate gross sales price, the “Aggregate Maximum Forward Hedge Amount”) and (B) the desired terms for the related Confirmation. The relevant Forward Purchaser and/or the Agent shall promptly, and in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject prior to the terms and conditions opening of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly trading on the NYSETrading Day following the Trading Day on which such Forward Instruction Notice was delivered, on any other existing trading market for choose to (A) accept the Shares terms proposed in such Forward Instruction Notice, (B) decline to participate in the proposed Forward or through a market maker, or directly to any customer or client of (C) propose amended terms upon which the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to Forward Purchaser and/or the Agent would participate in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)proposed Forward; provided, however, that in the case of clause (A) C), the Company may accept or reject such Suspension Period shall apply equally to amended terms in its sole discretion no later than on the Manager Trading Day following the Trading Day on which the Forward Purchaser and/or the Agent proposed such amended terms. Promptly upon the acceptance of a Forward Instruction Notice (or its amended terms, as applicable, and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder in any event prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close opening of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE immediately following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectivelyTrading Day), the Company and the Operating Partnership Forward Purchaser shall be deemed to have affirmed each representation enter into a Confirmation substantially in the form of Exhibit D hereto and warranty contained in this Agreementconsistent with such Forward Instruction Notice. Any obligation of the Manager to use its commercially reasonable efforts to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viii) Notwithstanding anything to the contrary hereinin this Agreement, any Agent may decline, for any reason in its sole discretion, to act as sales agent for the Manager shall not sell (1) Series A Preferred Shares at a price higher than Company hereunder with respect to one or more sets of Company instructions for the Series A Maximum Price. For sale of the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleShares.
Appears in 1 contract
Samples: Atm Equity Offering Sales Agreement (Digital Realty Trust, L.P.)
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principalagent, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement orby the Company’s Board of Directors, together with all sales of Shares under this Agreement or a duly authorized committee thereof, and notified to the Alternative Distribution Agreements, Manager by electronic mail substantially in an amount in excess of the Maximum Numberform attached hereto as Exhibit 3(a)(i)), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”Offering (as defined below), including including, without limitation limitation, sales made directly by means of ordinary brokers’ transactions on the NYSE, on any other existing trading market for the Shares to or through a market makermaker at market prices prevailing at the time of sale, at prices related to prevailing market prices or directly at negotiated prices. Subject to any customer or client the terms and conditions of this Section 3(a), the Manager shall use its commercially reasonable efforts to offer and sell all of the Manager. The Shares designated; provided, however, that the Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation, in the event that an offer or sale of the Shares on behalf of the Company may also sell Shares in the reasonable judgment of the Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes that it may be deemed to be an “underwriter” under the Act in a transaction that is other than by any other method permitted by law, including but not limited means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in privately negotiated transactionsaccordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At the Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(n), 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w4(q) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of the Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on in which the Shares are sold pursuant to this Section 3(a) setting forth (i) the number amount of the Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o4(n) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiii) Notwithstanding anything If the Company wishes to issue and sell the Shares other than as set forth in Section 3(a) hereof (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Company and the Manager will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate gross sales proceeds of the Shares sold pursuant to this Agreement exceed the lesser of (A) the amount set forth in Section 1 hereof and (B) the amount available for offer and sale under the currently effective Registration Statement nor shall the aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized to be issued and sold from time to time under this Agreement by the Company’s Board of Directors, or a duly authorized committee thereof, and notified to the contrary hereinManager in writing.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party, and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares through or to the Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(e) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Manager, sales effected pursuant to this Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act (each such date, a “Filing Date”) and ends, for all periods, on the earlier of (i) the date that directors and officers are no longer permitted to effect transactions in securities of the Company pursuant to the Company’s policy on xxxxxxx xxxxxxx as in effect from time to time and (ii) the end of the quarter in which the applicable Filing Date occurs. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Manager, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not sell be obligated to sell, during any period in which the Company is or could be deemed to be, in possession of material non-public information.
(1f) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of The Company acknowledges and agrees that (i) $25.00 plus any accrued and unpaid dividends per share tothere can be no assurance that the Manager will be successful in selling the Shares, but excluding, the date of sale and (ii) 1.005; the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (biii) the Manager shall be under no obligation to purchase Shares on October 5a principal basis pursuant to this Agreement unless a Terms Agreement, 2020 in form and thereaftersubstance mutually satisfactory to the Company and Manager, $25.00 plus shall have been executed by the Company and the Manager.
(g) The Company agrees that any accrued and unpaid dividends per share tooffer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through only one of the Manager or the Alternative Manager on any single given day, but excludingin no event by both, and the date of saleCompany shall in no event request that the Manager and the Alternative Manager sell Shares on the same day.
Appears in 1 contract
Samples: Equity Distribution Agreement (Education Realty Trust, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell exclusively through or to the Manager, Agent acting as sales agent and/or principal, (or directly to the Agent acting as and when it provides instructions, in its discretion, for the sale of the Sharesprincipal from time to time), and the Manager Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares. Sales of the Shares, if any, through the Agent acting as sales agent or directly to the Agent acting as principal may be made in negotiated transactions or transactions that are deemed to be “at the market offerings” as defined in Rule 415 under the 1933 Act. Notwithstanding the provisions of Section 3(m), the Agent shall not purchase the Shares on sold pursuant to this Agreement for its own account as principal unless expressly authorized in writing to do so by the following termsCompany.
(ib) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE NASDAQ is scheduled to close prior to its regular weekday closing time), (Beach, a “Trading Day”) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) that the Company has satisfied its obligations under Section 6 hereofof this Agreement and that the Company has instructed the Agent to make such sales. The For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Company will designate or its Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which Xxxxxx Xxxxxxxx is acting for the Company in a notice delivered capacity other than as Agent under this Agreement. On any Trading Day, the Company may instruct the Agent by electronic mail telephone (confirmed promptly by email by any of the individuals from the Company set forth on Schedule 2 and shall be addressed to each of the Manager substantially in individuals from Xxxxxx Xxxxxxxx set forth on Schedule 2, which confirmation will be promptly acknowledged by the form attached hereto Agent) as Schedule C (a “Placement Notice”) to the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager Agent on such day (in any event not in excess of the amount number available for issuance under the Prospectus and the Registration Statement Statement) and the minimum price per Share at which such Shares may be sold (each such instruction and subsequent confirmation, a “Placement Notice”). Subject to the terms and conditions hereof, the Agent shall use its commercially reasonable efforts to sell as sales agent all of the Shares so designated by the Company. The Company and the Agent each acknowledge and agree that (i) there can be no assurance that the Agent will be successful in selling the Shares, (ii) the Agent will incur no liability or obligation to the Company or any other person or entity if they do not sell Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement, and (iii) the Agent shall be under no obligation to purchase Shares on a principal basis except as otherwise specifically agreed by each of the Agent and the Company pursuant to a Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of any applicable Terms Agreement, the terms of such Terms Agreement will control.
(c) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, any Shares pursuant to this Agreement (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in an amount a number in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions Company’s board of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makerdirectors, or directly to any customer or client a duly authorized committee thereof, and of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by which the Company has notified the Agent in any such instructionwriting. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail)Agent, suspend the offering of the Shares or the Agent may, upon notice to the Company, suspend the offering of the Shares with respect to which the Agent is acting as sales agent for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Any notice given pursuant to the preceding sentence may be given by telephone by any of the individuals from the Company set forth on Schedule 2 (confirmed promptly by email and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect addressed to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination each of the Suspension Periodindividuals from Xxxxxx Xxxxxxxx set forth on Schedule 2, which confirmation will be promptly acknowledged).
(iiid) The Manager hereby covenants and agrees not to make gross sales price per share of any sales of Shares on behalf of the Company, sold pursuant to this Section 3(a), other than (A) Agreement by means of At the Market Offerings and (B) such other Agent acting as sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon the market price prevailing at the time of sale for shares of the Common Stock sold by the Company and the Manager.
(iv) Agent on NASDAQ or otherwise. The compensation payable to the Manager, as an agent of the Company, Agent for sales of Shares with respect to which the Agent acts as sales agent shall be at a mutually agreed rate, not up to exceed 2.03.0% of the gross sales price of any the Shares for amounts of Shares sold pursuant to this Section 3(a)Agreement. The Company may only sell Shares to the Agent, acting as principal, at a price and on such other terms as may be agreed upon with the Agent at the relevant Applicable Time and pursuant to a separate Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(ve) If acting as a sales agent hereunder, the Manager Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE NASDAQ for each day on during which Shares are sold pursuant to under this Section 3(a) setting Agreement, which confirmation shall set forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the CompanyCompany from the sale of such Shares, and (iii) the compensation payable by the Company to the Manager such Agent with respect to the sale of such salesShares.
(vif) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement (and any applicable Terms Agreement) exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in the preamble paragraph of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement (or any applicable Terms Agreement) by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing.
(g) Settlement for sales of Shares pursuant to this Section 3(a) 2 will occur on the second business day (or that is also a Trading Day following the trade date on which such earlier day as is industry practice for regular-way trading and as mutually Shares are sold, unless another date shall be agreed to by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company to the Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account at The Depository Trust Company against payments by the Agent of the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds delivered to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for .
(h) Notwithstanding any other provision of this Agreement, the Company for all matters related and the Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares, and the Agent shall not be obligated to sell, during any period in which the settlement Company’s xxxxxxx xxxxxxx policy (as it exists on the date of the transfer Agreement, and as such may be amended from time to time), would prohibit the purchases or sales of the Shares through DWAC Common Stock by its officers or directors, or during any other period in which the Company is in possession of material non-public information; provided that, unless otherwise agreed between the Company and the Agent, for purposes of this Section 3(a)(vi)2(h) such period shall be deemed to end on the day immediately following the date on which the Company’s next subsequent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is filed with the Commission.
(viii) At each Time of SaleApplicable Time, Settlement Date and Representation Date, Registration Statement Amendment Date (each, as defined in Section 2(b), Section 3(a)(vibelow) and Section 4(o) hereof, respectively)each Company Periodic Report Date, the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent pursuant to this Agreement shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof6.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 1 contract
Samples: At the Market Equity Offering Sales Agreement (Endologix Inc /De/)
Sale and Delivery of Shares. (a) On Upon the basis of the representations, representations and warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through or to the Managerrespective Underwriters, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale each of the SharesUnderwriters, severally and the Manager not jointly, agrees to use its commercially reasonable efforts purchase from the Company the number of Firm Shares set forth opposite the name of such Underwriter in Schedule A attached hereto, subject to selladjustment in accordance with Section 7 hereof at a purchase price of $9.45 per Share, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are less an amount per Share equal to be sold on a daily basis any dividends or otherwise as shall be mutually agreed upon other distributions declared by the Company and payable on the Manager Firm Shares but not payable on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofAdditional Shares. The Company is advised by the Representatives that the Underwriters will designate in (i) make a notice delivered by electronic mail to public offering of their respective portions of the Manager substantially Firm Shares as soon after the effectiveness of this Agreement as in the form attached hereto as Schedule C Representatives’ judgment is advisable and (a “Placement Notice”ii) initially offer the maximum number of Firm Shares to be sold by upon the Manager daily as agreed to by terms and conditions set forth in the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized Prospectus. The Representatives may from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and increase or decrease the Alternative Distribution Agreements, in an amount in excess public offering price of the Maximum Number)Shares after the initial public offering to such extent as the Representatives may determine.
(b) In addition, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company grants to the several Underwriters the option (the “Additional Shares Option”) to purchase, and mutually agreed by upon the Manager. Subject basis of the representations and warranties and subject to the terms and conditions herein set forth, the Underwriters shall have the right to purchase, severally and not jointly, from the Company ratably in accordance with the number of Firm Shares to be purchased by each of them, all or a portion of the Additional Shares at the same purchase price per share to be paid by the Underwriters to the Company for the Firm Shares. The Additional Shares Option may be exercised by the Representatives on behalf of the several Underwriters at any time and from time to time on or before the thirtieth day following the date of this Section 3(a), the Manager may sell Shares Agreement by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon written notice to the other party hereto by telephone Company. Such notice shall set forth the aggregate number of Additional Shares as to which the Additional Shares Option is being exercised and the date and time when the Additional Shares are to be delivered (confirmed promptly by electronic mail), suspend the offering any such date and time being herein referred to as an “Additional Time of the Shares for a specified period (a “Suspension PeriodPurchase”); provided, however, that no Additional Time of Purchase shall be earlier than the Time of Purchase (Aas defined below) such Suspension Period or later than the tenth business day after the date on which the Additional Shares Option shall apply equally have been exercised. The number of Additional Shares to be sold to each Underwriter shall be the number which bears the same proportion to the Manager aggregate number of Additional Shares being purchased as the number of Firm Shares set forth opposite the name of such Underwriter on Schedule A hereto bears to the total number of Firm Shares (subject, in each case, to such adjustment as the Representatives may determine to eliminate fractional shares and each Alternative Manager to adjustment in accordance with Section 7 hereof).
(c) Payment of the purchase price for the Firm Shares shall be made to the Company by Federal Funds wire transfer against delivery of the certificates or security entitlements in respect of the Firm Shares to the Representatives through the facilities of The Depository Trust Company (“DTC”) for the respective accounts of the Underwriters. Such payment and delivery shall be made at 9:00 A.M., New York City time, on July 27, 2016 (Bunless another time shall be agreed to by the Representatives and the Company, unless postponed in accordance with the provisions of Section 7 hereof). The time at which such payment and delivery are to be made is herein referred to as the “Time of Purchase.” Electronic transfer of the Firm Shares shall be made to the Representatives at the Time of Purchase in such names and in such denominations as the Representatives shall specify.
(d) Payment of the purchase price for the Additional Shares shall be made at the Additional Time of Purchase in the same manner and at the same office and time of day as the payment for the Firm Shares. Electronic transfer of the Additional Shares shall be made to the Representatives at the Additional Time of Purchase in such Suspension Period names and in such denominations as the Representatives shall specify.
(e) Each of the Representatives individually and not as representatives of the Underwriters, may (but shall not affect be obligated to) make payment of the purchase price for the Firm Shares or impair the parties’ respective Additional Shares, if any, to be purchased by any Underwriter whose funds have not been received by the Time of Purchase or any applicable Additional Time of Purchase, as the case may be, but such payment shall not relieve such Underwriter from its obligations with respect to Shares sold hereunder prior to hereunder.
(f) Deliveries of the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) documents described in Section 5 hereof with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination purchase of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be made at a mutually agreed ratethe offices of Xxxxxx & Xxxxxxx LLP at 000 Xxxx Xxxxxx, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). The remaining proceedsXxxxx 0000, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salesXxxxxxx, shall constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designeeXxxxx 00000, at The Depository Trust Company through its Deposit and Withdrawal 9:00 A.M., New York City time, at Custodian System (“DWAC”) or by such other means the Time of delivery as may be mutually agreed upon by the parties heretoPurchase and, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Additional Time of Sale, Settlement Date and Representation Date (eachPurchase, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofcase may be.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 1 contract
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by Each time that the Company wishes to issue and the Manager sell Shares on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time) pursuant to this Agreement (each, a “Placement”), (B) it will instruct the Company, through any Manager by telephone of the individuals listed parameters in accordance with which it desires Shares to be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, the minimum price below which sales may not be made and any limitation on the number of Shares that may be sold in any one day (a “Placement Notice”). The Manager will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same business day (as defined below) on which such Placement Notice is delivered to the Manager, issue to the Company a notice by email addressed to all of the authorized representatives of the Company on Schedule B C hereto (the “Authorized Company Representatives”)) confirming all of the parameters of the Placement. The Placement Notice shall be effective upon receipt by any of the Authorized Company Representatives of the email notice from the Manager, has instructed unless and until (i) the Manager entire amount of the Shares covered by telephone the Placement Notice have been sold, (confirmed promptly by electronic mailii) to make sales of Shares and in accordance with Section 3(a)(ii) hereof, the Company suspends or terminates the Placement Notice, (Ciii) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in issues a notice delivered by electronic mail to subsequent Placement Notice with parameters superseding those on the Manager substantially in the form attached hereto as Schedule C (a “earlier dated Placement Notice”, or (iv) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance this Agreement has been terminated under the Prospectus and the Registration Statement or in an amount in excess provisions of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the ManagerSection 9. Subject to the terms and conditions of this Section 3(a)hereof, the Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated in the Placement Notice; provided, however, that the Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation in the event an offer or sale of the Shares on behalf of the Company may sell Shares by any method permitted by law in the judgment of the Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed to be an “at the marketunderwriter” offering as defined in Rule 415 under the 1933 Act in a transaction that is other than (A) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the 1933 Act or (B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the transactions described in (A) and (B) are hereinafter referred to as “At the Market OfferingOfferings”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailmail from such party), suspend the offering of the Shares for pursuant to this Agreement or suspend or terminate a specified period (a “Suspension Period”)previously issued Placement Notice; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of the Shares shall be at a mutually agreed rate, not up to exceed 2.01.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant applicable time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number aggregate amount of the Shares sold on such day, (ii) the aggregate Net Proceeds to the Company, and (iii) the aggregate compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the date on which such sales are made made, unless another date shall be agreed upon by the Company and the Manager (provided that, if such Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day) (each such date, a “Settlement Date”). As used herein, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of electronically transferring the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties heretoCompany and the Manager, which in all cases shall be freely tradable, transferable, registered shares eligible for delivery through DTC, in good deliverable formreturn for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o4(q) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each its representations and warranties contained in this Agreement as if such representation and warranty contained in this Agreementwere made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof5 of this Agreement.
(viiii) Notwithstanding anything If the Company wishes to issue and sell the Shares other than as set forth in Section 3(a) of this Agreement or as set forth in Section 3(a) of any Alternative Equity Distribution Agreement, it may elect, in its sole discretion, to notify the Manager of the proposed terms of such sale. If the Manager (or an Alternative Manager), acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager or an Alternative Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. For avoidance of doubt, nothing contained in this Agreement shall be construed to require the Company to engage the Manager or any Alternative Managers in connection with the offer and sale of any of the Company’s securities, including shares of the Common Stock, whether in connection with an underwriting offering or otherwise.
(c) In the event the Company engages the Manager for a sale of Shares that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act, the Company and the Manager will agree to compensation that is customary for the Manager with respect to such transactions.
(d) (i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the contrary hereinsale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement and any Alternative Equity Distribution Agreement would exceed the lesser of (A) the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement and any Alternative Equity Distribution Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares (i) at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and notified to the Manager in writing and (ii) at a price (net of the Manager’s commission, discount or other compensation for such sales payable by the Company pursuant to this Section 3) lower than the Company’s then-current net asset value per share (as calculated pursuant to the 1940 Act), unless the Company has received the requisite approval from the Company’s board of directors or a duly authorized committee thereof, and notifies the Manager in writing.
(ii) If any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other parties and sales of the Shares under this Agreement and any Alternative Equity Distribution Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Manager (which such request may be by electronic mail), the Manager shall not sell (1) Series A Preferred Shares at promptly calculate and provide in writing to the Company a price higher than report setting forth, for the Series A Maximum Price. For the purposes hereofprior week, the “Series A Maximum Price” average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(e) Each sale of the Shares to or through the Manager or any Alternative Manager, as applicable, shall mean: be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement, or the respective Alternative Equity Distribution Agreement or, if applicable, an Alternative Terms Agreement, as applicable. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained (aas if such representations and warranties were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date) through October 4, 2020and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the product price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, any provisions relating to the granting of an option to purchase additional Shares for the purpose of covering over-allotments, and the time and date (ieach such time and date being referred to herein as a “Time of Delivery”) $25.00 plus and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any accrued requirements for opinions of counsel, accountants’ letters and unpaid dividends per share to, but excluding, officers’ certificates pursuant to Section 5 hereof and any other information or documents required by the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Main Street Capital CORP)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell exclusively through or to an Agent (the Manager, “Designated Agent”) acting as sales agent and/or principal, or directly to an Agent acting as and when it provides instructions, in its discretion, for the sale of the Sharesprincipal from time to time, and the Manager Designated Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares. Nothing contained herein restricts, nor may be deemed to restrict, the Company from undertaking another offering of its securities pursuant to a separate registration under the 1933 Act (or any exemption from such registration), or another offering under the Registration Statement, provided the Company complies with Section 3(o) hereof. Sales of the Shares, if any, through a Designated Agent acting as sales agent or directly to the Agent acting as principal may be made in transactions that are deemed to be “at the market offerings” as defined in Rule 415 under the 1933 Act. Notwithstanding the provisions of Section 3(m), the Agent shall not purchase the Shares on sold pursuant to this Agreement for its own account as principal unless expressly authorized in writing to do so by the following termsCompany.
(ib) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager Designated Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE Nasdaq is scheduled to close prior to its regular weekday closing time), (Beach, a “Trading Day”) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) that the Company has satisfied its obligations under Section 6 hereofof this Agreement and that the Company has instructed the Designated Agent to make such sales. The For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Company will designate or its Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which such Designated Agent is acting for the Company in a notice delivered capacity other than as Designated Agent under this Agreement. On any Trading Day, the Company may instruct the Designated Agent by electronic mail telephone (confirmed promptly by email by any of the individuals from the Company set forth on Schedule 1 and shall be addressed to each of the individuals from the Designated Agent set forth on Schedule 1, which confirmation will be promptly acknowledged by the Designated Agent) as to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum aggregate dollar value or number of Shares to be sold by the Manager daily as agreed to by the Manager Designated Agent on such day (in any event not in excess of the amount number available for issuance under the Prospectus and the currently effective Registration Statement Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Designated Agent shall use its commercially reasonable efforts to sell as sales agent all of the Shares so designated by the Company and in the manner and on the terms so designated by the Company. The Company and the Designated Agent each acknowledge and agree that (i) there can be no assurance that the Designated Agent will be successful in selling the Shares, (ii) the Designated Agent will incur no liability or obligation to the Company or any other person or entity if they do not sell Shares for any reason other than a failure by the Designated Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement, and (iii) the Designated Agent shall be under no obligation to purchase Shares on a principal basis except as otherwise specifically agreed by each of the Designated Agent and the Company pursuant to a Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Designated Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, any Shares pursuant to this Agreement (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in an amount a number in excess of the amount number or maximum aggregate dollar value of Shares Shares, in each case, authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company Company’s board of directors, or a duly authorized committee thereof, and mutually agreed by the Manager. Subject notified to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined Designated Agent in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionwriting. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail)Designated Agent, suspend the offering of the Shares or the Designated Agent may, upon notice to the Company, suspend the offering of the Shares with respect to which the Designated Agent is acting as sales agent for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Any notice given pursuant to the preceding sentence may be given by telephone (confirmed promptly by email and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect addressed to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination each of the Suspension Periodindividuals from the Agents set forth on Schedule 1, which confirmation will be promptly acknowledged).
(iiid) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Designated Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Designated Agent on Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Designated Agent for sales of Shares with respect to which the Designated Agent acts as sales agent shall be equal to 3.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. The Company may sell Shares to an Agent, acting as principal, at a price agreed upon with such Agent at the relevant Applicable Time and pursuant to a separate Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). Such Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(ve) If acting as a sales agent hereunder, the Manager Designated Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable promptly following the close of trading on the NYSE Nasdaq, each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager such Designated Agent with respect to such sales.
(vif) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement and any applicable Terms Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in the preamble paragraph of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement or any applicable Terms Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Designated Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing.
(g) Settlement for sales of Shares pursuant to this Section 3(a) 2 will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Designated Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Designated Agent for settlement on such date shall be delivered by the Company to the Designated Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Designated Agent’s account at The Depository Trust Company against payments by the Designated Agent of the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds delivered to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager Designated Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Designated Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for .
(h) Notwithstanding any other provision of this Agreement, the Company for all matters related and the Designated Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Designated Agent shall not be obligated to sell, during any period in which the settlement Company’s ixxxxxx xxxxxxx policy, as it exists on the date of the transfer Agreement and as such may be amended from time to time, would prohibit the purchases or sales of the Shares through DWAC Company’s Common Stock by its officers or directors, or during any other period in which the Company is, or could be deemed to be, in possession of material non-public information; provided that, unless otherwise agreed between the Company and the Designated Agent, for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b2(h), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership such period shall be deemed to have affirmed each representation and warranty contained in this Agreement. end on the second trading day after the date on which the Company’s next subsequent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is filed with the Commission.
(i) Any obligation of the Manager Designated Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiij) Notwithstanding anything The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares pursuant to this Agreement shall only be effected by or through an Agent, and only a single Agent, on any single given date, and in no event shall the contrary herein, Company request that more than one Agent sell securities on the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of same day; provided however that (i) $25.00 plus the foregoing limitation shall not apply to (A) exercise, vesting or settlement of any accrued option, restricted stock unit, warrant, right or any conversion privilege set forth in the instruction governing such securities, (B) sales solely to employees, directors or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such person, (C) grants of options, shares of Common Stock and unpaid dividends per share toother awards to purchase or receive shares of Common Stock under the Company’s stock option, but excluding, stock bonus or other stock plans or arrangements that are in effect or (D) issuances of any shares of Common Stock related to the date filing by the Company of sale any registration statement on Form S-8 or a successor form thereto relating to shares of Common Stock granted under any equity compensation plan or employee stock purchase plan and (ii) 1.005; such limitation shall not apply (Y) on any day during which no sales are made pursuant to this Agreement or (Z) during a period in which the Company has notified the Agents that it will not sell Common Stock under this Agreement and (b1) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleno Company instruction to sell Shares is pending or (2) after a Company instruction to sell Shares has been withdrawn.
Appears in 1 contract
Samples: At the Market Equity Offering Sales Agreement (Viking Therapeutics, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the The Company agrees proposes to issue and sell through or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales during the term of Shares under this Agreement and on the Alternative Distribution Agreementsterms set forth herein, in an amount in excess shares (the “Shares”) of the Maximum Number)Company’s common stock, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an $0.0001 par value per share (“at the market” offering as defined in Rule 415 under the Act (an “At the Market OfferingCommon Stock”), including without limitation sales made directly from time to time during the term of this Agreement and on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)terms set forth herein; provided, however, that (A) such Suspension Period in no event shall apply equally to the Company issue or sell through the Manager and each Alternative Manager and such number of Shares that (Ba) such Suspension Period shall not affect exceeds the number or impair dollar amount of shares of Common Stock registered on the parties’ respective obligations with respect Registration Statement, pursuant to Shares sold hereunder which the offering is being made, less the dollar amount of securities issued under the Registration Statement prior to the giving date of this Agreement, (b) exceeds the number of authorized but unissued shares of Common Stock (less the number of shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized capital stock), or (c) would cause the Company or the offering of the Shares to not satisfy the eligibility and transaction requirements for use of Form S-3, including, if applicable, General Instruction I.B.6 of Registration Statement on Form S-3 (the lesser of (a), (b) and (c), the “Maximum Amount”).”
3. Section 8(c) of the ATM Agreement is hereby amended and restated as follows: “This Agreement shall remain in full force and effect until the date that this Agreement is terminated pursuant to Sections 8(a) or (b) above or otherwise by mutual agreement of the parties, provided that any such notice termination by mutual agreement shall in all cases be deemed to provide that Sections 5, 7, 8, 9, 10, 12 and 14 shall remain in full force and effect.”
4. The Company and Ladenburg hereby agree that the date of this Amendment shall be a Representation Date under the ATM Agreement (provided, furtherhowever, that there the deliverables under Section 4(m) of the ATM Agreement shall not be required on the date of this Amendment) and the Company shall file a Prospectus Supplement with the Commission on the date hereof.
5. In connection with the amendments to the ATM Agreement set forth herein, the Company shall reimburse Ladenburg for the fees and expenses of Xxxxxxxxx’x counsel in an amount not to exceed $10,000, which shall be no obligations under Sections 4(o)paid on the date hereof, 4(p), 4(q), 4(r), 4(s) and 4(w) such amount to be inclusive of the expenses incurred in the due diligence session with respect to the delivery of certificatesRepresentation Date hereof.
6. Except as expressly set forth herein, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination all of the Suspension Periodterms and conditions of the ATM Agreement shall continue in full force and effect after the execution of this Amendment and shall not be in any way changed, modified or superseded by the terms set forth herein.
(iii) The Manager hereby covenants 7. This Amendment may be executed in two or more counterparts and agrees not to make any sales of Shares on behalf of the Companyby facsimile or “.pdf” signature or otherwise, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect each of such sales, shall constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership counterparts shall be deemed to have affirmed each representation an original and warranty contained in this Agreement. Any obligation all of the Manager to use its commercially reasonable efforts to sell Shares on behalf of the Company such counterparts together shall be subject to the continuing accuracy of the representations and warranties of the Company constitute one and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Pricesame agreement. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 1 contract
Samples: At the Market Offering Agreement (Sonoma Pharmaceuticals, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, Agent acting as sales agent and/or principaland the Agent agrees to use its commercially reasonable efforts to sell as sales agent for the Company, the Shares. The Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company other than (A) by means of ordinary brokers’ transactions that qualify for delivery of a Prospectus to NASDAQ in accordance with Rule 153 under the 1933 Act (such transactions are hereinafter referred to as “At the Market Offerings”) and when it provides instructions, (B) such other sales of the Shares on behalf of the Company in its discretion, for capacity as agent of the Company as shall be agreed by the Company and the Agent. The Agent covenants and agrees that it shall not engage in a sale of Shares on the Company's behalf that would constitute the sale of a "block" under Rule 10b-18(a)(5) under the SharesExchange Act or a "distribution" within the meaning of Rule 100 of Regulation M under the Exchange Act without the Company's prior written consent. Subject to the previous sentence, the Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is not an At the Market Offering and the Company consents to such sale, the Company will provide to the Agent, at the Agent’s request and upon reasonable advance notice to the Company, on or prior to the Settlement Date (as defined below) for such transaction, the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 hereof, each dated the Settlement Date, and such other documents and information as the Agent shall reasonably request. Solely with respect to such sales that would constitute a "block" or a "distribution," the Agent shall use commercially reasonable efforts to assist the Company in obtaining performance of its obligations by each purchaser whose offer to purchase Shares has been solicited by the Agent and accepted by the Company. Each time that the Company wishes to issue and sell Shares hereunder (each, a “Placement”), it will notify the Agent by email notice (or other method mutually agreed to in writing by the parties) containing the parameters in accordance with which it desires Shares to be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Schedule I. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule II (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Agent set forth on Schedule II, as such Schedule II may be amended from time to time. If the Agent wishes to accept such proposed terms included in the Placement Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same Business Day on which such Placement Notice is delivered to the Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Agent set forth on Schedule II) accepting such terms (the "Agent Acceptance") or setting forth the terms that the Agent is willing to accept. Where the terms provided in the Placement Notice are proposed to be modified as provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Agent until the Company delivers to the Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the "Acceptance"), which email or other communication shall be addressed to all of the individuals from the Company and the Agent set forth on Schedule II and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Agent, on the same Business Day. The Placement Notice shall be effective upon receipt by the Company of the Agent Acceptance or, if modified as provided above, upon receipt by the Agent of the Company Acceptance, as the case may be, unless and until (i) the entire amount of the Shares covered by the Acceptance have been sold, (ii) in accordance with the notice requirements set forth in Section 4(c), the Company suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) the Agreement has been terminated under the provisions of Section 9. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement unless and until the Company delivers a Placement Notice to the Agent and there occurs with respect thereto either (i) an Agent Acceptance or (ii) a Company Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the relevant Acceptance and herein. In the event of a conflict between the terms of this Agreement and the terms of an Acceptance, the terms of the Acceptance will control. Subject to the terms and conditions hereof, upon the existence of an Acceptance, the Agent shall use its commercially reasonable efforts to sell as sales agent Shares designated in the Acceptance up to the amount specified, and otherwise in accordance with the terms of such Acceptance. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling Shares and (B) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
(b) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Manager agrees Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, as sales agent for the Company, the any Shares on the following terms.
(i) The Shares are at a price lower than the minimum price therefor authorized from time to be sold on a daily basis time, or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (Aii) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makerBoard, or directly to any customer or client of a duly authorized committee thereof, and as set forth in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionapplicable Acceptance. In addition, the Company or the Manager Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering telecopy or email to all of the individuals of the other party set forth on Schedule II, which confirmation will be promptly acknowledged by the receiving party) suspend or refuse to undertake any sale of Shares designated in such Acceptance for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice. Each of the parties hereto agrees that no such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) effective against the other unless it originates from an individual named on Schedule II and 4(w) with respect is made to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination individuals of the Suspension Periodother party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time.
(iiic) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on NASDAQ or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be equal to 2% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vd) If acting as sales agent hereunder, the Manager The Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE NASDAQ each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales. For the avoidance of doubt, such written confirmation will be provided to the Company no later than the opening of trading on the immediately following trading day on NASDAQ.
(vie) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in Section 1 of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement and the KCM Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s Board, or a duly authorized committee thereof, and notified to the Agent in writing as set forth in the applicable Placement Notice. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Agent shall calculate and provide in writing to the Company, on a monthly basis, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(f) Settlement for sales of Shares pursuant to this Section 3(a) 4 and made in accordance with the terms of the applicable Acceptance will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day for NASDAQ (other than a day on the NYSE which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the sale of Agent for settlement on such Shares date shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon against payments by the parties hereto, which Agent of the Net Proceeds from the sale of such Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable formsame day funds delivered to an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viig) At each Time of SaleApplicable Time, each Settlement Date and each Representation Date (each, as such term is defined in Section 2(b), Section 3(a)(vi6(n) and Section 4(o) hereof, respectivelyherein), the Company Company, the Adviser and the Operating Partnership Administrator shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any The obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof4 of this Agreement.
(viiih) Notwithstanding anything The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Common Stock or any other equity security of the contrary hereinCompany pursuant to this Agreement shall only be effected by or through only one of Agent or KCM on any single given day, but in no event by both, and the Manager Company shall not in no event request that Agent and KCM sell (1) Series A Preferred Shares at a price higher than shares of Common Stock on the Series A Maximum Price. For the purposes hereofsame day; provided, the “Series A Maximum Price” shall mean: (a) through October 4however, 2020, the product of that (i) $25.00 plus any accrued and unpaid dividends per share to, but excludingthe foregoing limitation shall not apply to sales solely to employees of the Company, the date Adviser, the Administrator or their respective affiliates, or to a trustee or other person acquiring such securities for the accounts of sale such persons and (ii) 1.005; such limitation shall not apply on any day during which no sales are made pursuant to this Agreement.
(i) Except as may be mutually agreed by the Company and (b) the Agent the Company and the Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period commencing upon the 30th day following the end of each fiscal quarter and ending on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date on which the Company files with the Commission a Prospectus Supplement under Rule 497 relating to the Shares that includes updated financial information as of salethe end of the Company’s most recent quarterly period or fiscal year, as applicable (the “Quarterly 497 Filing”). Notwithstanding the foregoing, without the prior written consent of each of the Company and the Agent, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is in possession of material non-public information.
Appears in 1 contract
Samples: Equity Distribution Agreement (Prospect Capital Corp)
Sale and Delivery of Shares. (a) On the basis The Company’s board of directors has delegated to certain officers of the representationsCompany, warranties which are listed as authorized representatives of the Company on Schedule 1 hereto (the Authorized Company Representatives), the authority to negotiate the terms and agreements herein contained, but subject conditions of any such sale of the Shares.
(b) Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the ManagerAgent, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the such Shares on the following terms.
(i) as agreed upon herein. The Shares are to may be offered and sold on a daily basis or otherwise as shall be mutually in (1) privately negotiated transactions (if and only if the parties hereto have so agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing timein writing), or (B2) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method or payment permitted by law deemed to be an “at the market” offering as defined in Rule 415 under of the Act (an “At the Market Offering”)Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares New York Stock Exchange or sales made to or through a market makermaker or through an electronic communications network. Nothing in this Agreement shall be deemed to require either party to agree to the method of offer and sale specified in clause (1) above, or directly to any customer or client of the Manager. The Manager and either party may also sell Shares by any other method permitted by law, including but not limited to withhold its consent thereto in privately negotiated transactionssuch party’s sole discretion.
(iic) The Shares that may be sold pursuant to this Agreement are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Agent on any trading day (other than a day on which the New York Stock Exchange (the Exchange) is scheduled to close prior to its regular weekday closing time) (each, a Trading Day) that the Company has instructed the Agent through an Authorized Company Representative to make such sales. On any Trading Day, the Company may instruct the Agent by telephone (confirmed promptly by delivery of a sale instruction substantially in the form of Schedule 2 (a Sale Instruction) by telecopy or email, which Sale Instruction will be promptly acknowledged by the Agent) as to the maximum number of Shares to be sold by the Agent on such Trading Day (in any event not in excess of the number available for issuance under the Prospectus and the currently effective Registration Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Agent shall use its commercially reasonable efforts to sell all of the Shares so designated by the Company.
(d) Notwithstanding the foregoing, the CompanyCompany shall not instruct the Agent to sell, through and the Agent shall not be obligated to use its commercially reasonable efforts to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement, in each case, by the Company’s board of directors, a duly authorized committee thereof or an Authorized Company RepresentativesRepresentative, may instruct and notified to the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company Agent in any such instructionwriting. In addition, the Company or the Manager Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailtelecopy or email, which confirmation will be promptly acknowledged by the Company or Agent, as applicable), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice notice.
(e) Under no circumstances shall the aggregate offering price of Shares sold pursuant to this Agreement exceed the aggregate offering price of Shares of Common Stock (i) set forth in the preamble paragraph of this Agreement, (ii) available for issuance under the Prospectus and providedthe then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, furthera duly authorized committee thereof or an Authorized Company Representative, and notified to the Agent in writing. In addition, under no circumstances shall any Shares be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s board of directors, a duly authorized committee thereof or an Authorized Company Representative, and notified to the Agent in writing.
(f) If either party believes that there shall be no obligations the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under Sections 4(o), 4(p), 4(q), 4(r), 4(sthe Securities Exchange Act (applicable to securities with an average daily trading volume of $1,000,000 that are issued by an issuer whose common equity securities have a public float value of at least $150,000,000) and 4(w) are not satisfied with respect to the delivery Company or the Common Stock, it shall promptly notify the other party and sales of certificates, opinions, Shares under this Agreement shall be suspended until that or comfort letters to other exemptive provisions have been satisfied in the Manager during a Suspension Period and that such obligations shall recommence on the termination judgment of the Suspension Periodeach party.
(iiig) The Manager hereby covenants and agrees not to make gross sales price of any sales of Shares on behalf sold under this Agreement shall be the actual execution price of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon sold by the Company and the Manager.
(iv) Agent under this Agreement. The compensation payable to the Manager, as an agent of the Company, Agent for sales of Shares sold by the Agent under this Agreement shall be at a mutually agreed rate, not equal to exceed 2.0% of the gross sales price of any the Shares for amounts of Shares sold by the Agent pursuant to this Section 3(a)Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vh) If acting as sales agent hereunder, the Manager The Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Exchange each day on in which Shares are sold pursuant to by the Agent under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the gross sales prices of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales.
(vii) Settlement for sales of the Shares sold by the Agent pursuant to this Section 3(a) Agreement will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE third Trading Day following the date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be issued and delivered by the Company to the Agent against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the ManagerAgent’s account, or to the account of the ManagerAgent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares Shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The individuals listed on Schedule 3 to this Agreement and any replacement or additional individuals identified to the Agent in writing by an Authorized Company Representatives Representative shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)Section.
(viij) At each Time Notwithstanding any other provision contained herein, if subsequent to a sale of Sale, the Shares and prior to the related Settlement Date there shall have occurred:
(i) any general suspension of trading in securities on the Exchange or any limitation on prices for such trading or any restrictions on the distribution of securities established by the Exchange or by the Commission or by any federal or state agency or by the decision of any court,
(ii) a suspension of trading of any securities of the Company on the Exchange,
(iii) a banking moratorium declared either by federal or New York State authorities or
(iv) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by the United States Congress or any other substantial national or international calamity or crisis resulting in the declaration of a national emergency, or any material adverse change in the financial markets, provided that (1) the effect of such outbreak, escalation, declaration, calamity, crisis or material adverse change shall, in the reasonable judgment of the Agent, make it impracticable to proceed with the delivery of the Shares on the terms and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)the manner contemplated in the Disclosure Package, the Company Prospectus and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation , and (2) the Agent so notifies the Company, then, (W) the Agent shall not be required to deliver the applicable Net Proceeds on any Settlement Date for such Shares, (X) the Agent shall return to the Company Shares, if any, delivered to it by the Company for settlement of such sale, (Y) the Manager Company shall not be required to use its commercially reasonable efforts deliver such Shares for settlement of such sale and (Z) the Company shall not be required to sell pay the Agent any commission in connection with such sale.
(k) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares on behalf or any other equity security of the Company shall only be subject to the continuing accuracy effected by or through only one of the representations Agent or the Alternative Agents on any single given day, but in no event by more than one, and warranties of the Company shall in no event request that the Agent and any other Alternative Agent sell Shares on the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofsame day.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 1 contract
Samples: Sales Agency Agreement (Dominion Resources Capital Trust Iv)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell exclusively through or to the Manager, Agent acting as sales agent and/or principal, or directly to the Agent acting as and when it provides instructions, in its discretion, for the sale of the Sharesprincipal from time to time, and the Manager Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares. Sales of the Shares, if any, through the Agent acting as sales agent or directly to the Agent acting as principal shall be made in transactions that are deemed to be “at-the-market offerings” as defined in Rule 415 under the 1933 Act or in negotiated transactions with the consent of the Company. Nothing contained herein restricts, nor may be deemed to restrict, the Company from undertaking another offering of its securities pursuant to a separate registration under the 1933 Act (or an exemption from such registration), or another offering under the Registration Statement, provided the Company complies with Section 3(o) hereof. Notwithstanding the provisions of Section 3(l), the Agent shall not purchase the Shares on sold pursuant to this Agreement for its own account as principal unless expressly authorized in writing to do so by the following termsCompany.
(ib) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE Nasdaq is scheduled to close prior to its regular weekday closing time), (Beach, a “Trading Day”) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) that the Company has satisfied its obligations under Section 6 hereofof this Agreement and that the Company has instructed the Agent to make such sales. The For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Company will designate or its Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which the Agent is acting for the Company in a notice delivered capacity other than as Agent under this Agreement. On any Trading Day, the Company may instruct the Agent by electronic mail telephone (confirmed promptly by telecopy or email by any of the individuals from the Company set forth on Schedule 1 hereto and shall be addressed to each of the individuals from the Agent set forth on Schedule 1 hereto, which confirmation will be promptly acknowledged by the Agent) as to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum aggregate dollar value or number of Shares to be sold by the Manager daily as agreed to by the Manager Agent on such day (in any event not in excess of the amount number available for issuance under the Prospectus and the currently effective Registration Statement Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Agent shall use its commercially reasonable efforts to sell as sales agent all of the Shares so designated by the Company. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling the Shares, and (B) the Agent will incur no liability or obligation to the Company or any other person or entity if they do not sell Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
c) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, any Shares pursuant to this Agreement (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in an amount a number in excess of the amount number or maximum aggregate dollar value of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company Company’s board of directors, or a duly authorized committee thereof, and mutually agreed by the Manager. Subject notified to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined Agent in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionwriting. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail)Agent, suspend the offering of the Shares or the Agent may, upon notice to the Company, suspend the offering of the Shares with respect to which the Agent is acting as sales agent for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Any notice given pursuant to the preceding sentence may be given by telephone by any of the individuals from the Company set forth on Schedule 1 hereto (confirmed promptly by telecopy or email and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect addressed to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination each of the Suspension Periodindividuals from the Agent set forth on Schedule 1 hereto, which confirmation will be promptly acknowledged).
(iiid) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be equal to up to 3.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(ve) If acting as a sales agent hereunder, the Manager Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable promptly following the close of trading on the NYSE Nasdaq, each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager such Agent with respect to such sales.
f) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (vii) set forth in the preamble paragraph of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing.
g) Settlement for sales of Shares pursuant to this Section 3(a) 2 will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company to the Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account at The Depository Trust Company against payments by the Agent of the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds delivered to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes .
h) Notwithstanding any other provision of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)Agreement, the Company and the Operating Partnership Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is, or would reasonably be deemed to be, in possession of material non-public information, provided that, unless otherwise agreed between the Company and the Agent, for purposes of this paragraph (h), such period shall be deemed to have affirmed each representation and warranty contained in this Agreement. end on the date on which the Company’s next subsequent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is filed with the Commission.
i) Any obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 1 contract
Samples: At the Market Equity Offering Sales Agreement (HilleVax, Inc.)
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by Each time that the Company wishes to issue and the Manager sell Shares on any day that (A) is a trading day for the NYSE (a “Trading Day”) (other than a day Trading Day on which the NYSE is scheduled to close prior to its regular weekday closing time) pursuant to this Agreement (each, a “Placement”), (B) it will instruct the Company, through any Manager by telephone of the individuals listed parameters in accordance with which it desires Shares to be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, the minimum price below which sales may not be made and any limitation on the number of Shares that may be sold in any one day (a “Placement Notice”). The Manager will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same business day (as defined below) on which such Placement Notice is delivered to the Manager, issue to the Company a notice by email addressed to all of the authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”)) confirming all of the parameters of the Placement. The Placement Notice shall be effective upon receipt by any of the Authorized Company Representatives of the email notice from the Manager, has instructed unless and until (i) the Manager entire amount of the Shares covered by telephone the Placement Notice have been sold, (confirmed promptly by electronic mailii) to make sales of Shares and in accordance with Section 3(a)(ii) hereof, the Company suspends or terminates the Placement Notice, (Ciii) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in issues a notice delivered by electronic mail to subsequent Placement Notice with parameters superseding those on the Manager substantially in the form attached hereto as Schedule C (a “earlier dated Placement Notice”, or (iv) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance this Agreement has been terminated under the Prospectus and the Registration Statement or in an amount in excess provisions of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the ManagerSection 9. Subject to the terms and conditions of this Section 3(a)hereof, the Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated in the Placement Notice; provided, however, that the Manager shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation in the event an offer or sale of the Shares on behalf of the Company may sell Shares by any method permitted by law in the judgment of the Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed to be an “at the marketunderwriter” offering as defined in Rule 415 under the 1933 Act in a transaction that is other than (A) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the 1933 Act or (B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the transactions described in (A) and (B) are hereinafter referred to as “At the Market OfferingOfferings”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mailmail from such party), suspend the offering of the Shares for pursuant to this Agreement or suspend or terminate a specified period (a “Suspension Period”)previously issued Placement Notice; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of the Shares shall be at a mutually agreed rate, not up to exceed 2.01.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant applicable time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of connection with such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the The Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number aggregate amount of the Shares sold on such day, (ii) the aggregate Net Proceeds to the Company, and (iii) the aggregate compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the date on which such sales are made made, unless another date shall be agreed upon by the Company and the Manager (provided that, if such Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day) (each such date, a “Settlement Date”). As used herein, the term “business day” means any day other than a Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law, regulation or executive order to close. On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of electronically transferring the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties heretoCompany and the Manager, which in all cases shall be freely tradable, transferable, registered shares eligible for delivery through DTC, in good deliverable formreturn for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o4(q) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation its representations and warranty warranties contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership hereinCompany, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof5 of this Agreement.
(viiii) Notwithstanding anything If the Company wishes to issue and sell the Shares other than as set forth in Section 3(a) of this Agreement or as set forth in Section 3(a) of any Alternative Equity Distribution Agreement, it may elect, in its sole discretion, to notify the Manager of the proposed terms of such sale. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. For avoidance of doubt, nothing contained in this Agreement shall be construed to require the Company to engage the Manager or any Alternative Managers in connection with the offer and sale of any of the Company’s securities, including shares of the Common Stock, whether in connection with an underwriting offering or otherwise.
(c) In the event the Company engages the Manager for a sale of Shares that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act, the Company and the Manager will agree to compensation that is customary for the Manager with respect to such transactions.
(d) (i) Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the contrary hereinsale of such Shares, the aggregate gross sales proceeds or the aggregate number of the Shares sold pursuant to this Agreement and any Alternative Equity Distribution Agreement would exceed the lesser of (A) the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement and any Alternative Equity Distribution Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares (i) at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and notified to the Manager in writing and (ii) at a price (net of the Manager’s commission, discount or other compensation for such sales payable by the Company pursuant to this Section 4) lower than the Company’s then current net asset value per share (as calculated pursuant to the 1940 Act), unless the Company has received the requisite approval from the Company’s board of directors or a duly authorized committee thereof, and notifies the Manager in writing.
(ii) If any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other parties and sales of the Shares under this Agreement and any Alternative Equity Distribution Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. Upon the reasonable request of the Company in writing to the Manager (which such request may be by electronic mail), the Manager shall not sell (1) Series A Preferred Shares at promptly calculate and provide in writing to the Company a price higher than report setting forth, for the Series A Maximum Price. For the purposes hereofprior week, the “Series A Maximum Price” average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(e) Each sale of the Shares to or through the Manager or any Alternative Manager, as applicable, shall mean: (a) through October 4be made in accordance with the terms of this Agreement or, 2020if applicable, a Terms Agreement, or the respective Alternative Equity Distribution Agreement or, if applicable, an Alternative Terms Agreement, as applicable. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the product price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, any provisions relating to the granting of an option to purchase additional Shares for the purpose of covering over-allotments, and the time and date (ieach such time and date being referred to herein as a “Time of Delivery”) $25.00 plus and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any accrued requirements for opinions of counsel, accountants’ letters and unpaid dividends per share to, but excluding, officers’ certificates pursuant to Section 5 hereof and any other information or documents required by the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Main Street Capital CORP)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but and subject to the terms and conditions herein set forth, the Company agrees to issue and sell through or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold by the Manager on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE Nasdaq (other than a day on which the NYSE Nasdaq is scheduled to close prior to its regular weekday closing time) (each, a “Trading Day”), for which (BA) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto hereto, as such Schedule B may be amended from time to time (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mailmail containing a notice substantially in the form attached hereto as Exhibit 3(a)(i), with a copy to each of the other Authorized Company Representatives at such time) to make such sales of Shares and (CB) the Company has satisfied its obligations under Section Sections 4, 5 and 6 hereof. The On or before a Trading Day that the Company wishes to sell the Shares, the Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”Exhibit 3(a)(i) the maximum number amount of the Shares to be sold by the Manager daily or over a specific trading period as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement (including any limit set forth in General Instruction I.B.6 thereof, if applicable) or in an amount amount, together with all sales of the Shares under this Agreement, in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), or below any minimum price below which sales of the Shares may not be effected effected) and any other limitations specified by the Company and mutually agreed by the Manager. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or other security holders of the Company or the Company Parties or to a trustee or other person acquiring the Shares for the accounts of such persons in which the Manger is acting for the Company in a capacity other than as Manager under this Agreement. Subject to the terms and conditions of this Section 3(a), the Manager may sell the Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”Offering (as defined below), including including, without limitation limitation, sales made directly on the NYSEby means of ordinary brokers’ transactions, on any other existing trading market for the Shares to or through a market makermaker at market prices prevailing at the time of sale, at prices related to prevailing market prices or directly at negotiated prices (such transactions are hereinafter referred to as “At the Market Offerings”). Subject to the terms and conditions of this Section 3(a) and the other terms and conditions specified herein (including, without limitation, the accuracy of the representations and warranties of the Company Parties and the performance by the Company of its covenants and other obligations, contained herein and the satisfaction of the additional conditions specified in Section 6 hereof), the Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Manager shall have no obligation to offer or sell any customer Shares, and the Company acknowledges and agrees that the Manager shall have no such obligation, in the event that an offer or client sale of the Shares on behalf of the Company may, in the reasonable judgment of the Manager. The , constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act, or the Manager reasonably believes that it may also sell Shares be deemed to be an “underwriter” under the Act in a transaction that is other than by any other method permitted by law, including but not limited means of ordinary brokers’ transactions between members of Nasdaq that qualify for delivery of a Prospectus to Nasdaq in privately negotiated transactionsaccordance with Rule 153 under the Act.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o4(m), 4(n), 4(p), 4(q), 4(r), 4(s) and 4(w4(q) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of the Shares shall be at a mutually agreed rate, not to exceed 2.03.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Nasdaq each day on in which the Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Nasdaq following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, in addition to and in no way limiting the rights and obligations set forth in Section 7(a) hereof, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC DTC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)Date, the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiib) Notwithstanding anything If the Company wishes to issue and sell the Shares other than as set forth in Section 3(a) hereof, it will notify the Manager of the proposed terms of such issuance and sale (each, a “Placement”). If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Company and the Manager will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(c) Under no circumstances shall the aggregate gross sales proceeds of the Shares sold pursuant to this Agreement exceed the lesser of (A) the amount set forth in Section 1 hereof and (B) the amount available for offer and sale under the Registration Statement (including any limit set forth in General Instruction I.B.6 thereof, if applicable), nor shall the aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized to be issued and sold from time to time under this Agreement by the board of directors of the Company, or a duly authorized committee thereof, and notified to the contrary hereinManager in writing. The Manager shall have no responsibility for maintaining records with respect to Shares available for sale under the Registration Statement or for determining the aggregate gross sales price, number or minimum price of Shares duly authorized by the Company.
(d) Each sale of the Shares through or to the Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement. The Manager’s commitment, if any, to purchase Shares from the Company as principal shall be deemed to have been made on the basis of the accuracy of the representations and warranties of the Company, and performance by the Company of its covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth. At the time of each Terms Agreement, the Manager shall specify the requirements, if any, for the officers’ certificates, legal opinions and comfort letters pursuant to Sections 4(m), 4(n), 4(p) and 4(q) hereof.
(e) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Manager, sales effected pursuant to this Agreement may not sell (1) Series A Preferred Shares at a price higher than be requested by the Series A Maximum Price. For Company and need not be made by the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of Manager (i) $25.00 plus at any accrued time from and unpaid dividends per share toincluding the day on which the Company shall issue a press release containing, but excludingor shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the date applicable Bring-Down Delivery Date of sale and the Company referenced in Section 4(q) below, or (ii) 1.005; during any other period in which the Company is, or could be deemed to be, in possession of material non-public information.
(f) The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling the Shares, (ii) the Manager will not incur liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (biii) the Manager shall not be under any obligation to purchase Shares on October 5, 2020 a principal basis pursuant to this Agreement except as otherwise specifically agreed by the Manager and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of saleCompany pursuant to a Terms Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Edesa Biotech, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but and subject to the terms and conditions herein set forth, the Company agrees to issue and sell through or to the ManagerManagers, as sales agent and/or principalagents or principals, as and when it provides instructions, in its discretion, for the sale of the Shares, and the each Manager agrees to use its commercially reasonable efforts efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold by one of the Managers on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager Managers on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time) (each, a “Trading Day”), on which (BA) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto hereto, as such Schedule D may be amended from time to time (the “Authorized Company Representatives”), has instructed the such Manager by telephone (confirmed promptly by electronic mail, with a copy to each of the other Authorized Company Representatives at such time) to make such sales of Shares and (CB) the Company has satisfied its obligations under Section Sections 4, 5 and 6 hereof. The On a Trading Day that the Company wishes to sell the Shares, the Company may sell the Shares through only one Manager and, if it determines to do so, the Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C Exhibit 3(a)(i) (a “Placement Notice”or such other form as the Company and such Manager shall agree) the maximum number amount of the Shares to be sold by the such Manager daily as agreed to by the such Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount amount, together with all sales of the Shares under this Agreement, in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), or any minimum price below which sales of the Shares may not be effected effected) and any other limitations specified by the Company and mutually agreed by such Manager. On any Trading Day, the Company shall give at least one business day’s prior written notice by telephone (confirmed promptly by electronic mail) to the Managers as to any change of the Manager through whom sales of the Shares as sales agent will be made. The Manager through whom sales of the Shares as sales agent are then being made pursuant to this Section 3(a) is referred to as a “Selling Manager.” For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or other security holders of the Company or to a trustee or other person acquiring the Shares for the accounts of such persons in which any of the Managers are acting for the Company in a capacity other than as Manager under this Agreement. Subject to the terms and conditions of this Section 3(a), the Manager Managers may sell the Shares by any method permitted by law deemed to be an “at the market” offering At-the-Market Offering (as defined in Rule 415 under the Act (an “At the Market Offering”below), including including, without limitation limitation, sales made directly on the NYSEby means of ordinary brokers’ transactions, on any other existing trading market for the Shares to or through a market makermaker at market prices prevailing at the time of sale, at prices related to prevailing market prices or directly at negotiated prices. Subject to any customer or client the terms and conditions of this Section 3(a) and the other terms and conditions specified herein (including, without limitation, the accuracy of the Manager. The representations and warranties of the Company and the performance by the Company of its covenants and other obligations, contained herein and the satisfaction of the additional conditions specified in Section 6 hereof), the applicable Manager shall use its commercially reasonable efforts to offer and sell all of the Shares designated; provided, however, that the Managers shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Managers shall have no such obligation, in the event that an offer or sale of the Shares on behalf of the Company may also sell Shares in the reasonable judgment of a Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” (within the meaning of Rule 100 of Regulation M under the Exchange Act) or such Manager reasonably believes that it may be deemed to be an “underwriter” under the Act in a transaction that is other than by any other method permitted by law, including but not limited means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in privately negotiated transactionsaccordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”).
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager Managers by telephone (confirmed promptly by electronic mail) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager Managers may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and providedprovided further, furtherhowever, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters the Bring-Down Documents (as defined in Section 4(v) hereof) to the Manager Managers during a Suspension Period and that such obligations shall recommence on resume upon the termination of such Suspension Period and in any event prior to the resumption of the offering of any Shares under this Agreement following such Suspension PeriodPeriod (a “Resumption Date”).
(iii) The Manager Each of the Managers hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the At-the-Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the such Manager.
(iv) The compensation to the each Manager, as an agent of the Company, for sales of the Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a) as set forth in one or more letter agreements between the Company and each Manager (a “Letter Agreement”). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the The applicable Selling Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on in which the Shares are sold pursuant to this Section 3(a) setting forth (iA) the number of Shares sold on such day, (iiB) the aggregate gross sales proceeds and the Net Proceeds to the Company, Company and (iiiC) the compensation payable by the Company to the such Selling Manager with respect to the Shares sold on such salesday.
(vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day Trading Day (or such earlier other day as is may, from time to time, become standard industry practice for regular-way trading and settlement of such securities issuance or as mutually agreed to by the Company and the applicable Selling Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through the applicable Selling Manager for settlement on such date shall be issued and delivered by the Company to such Selling Manager against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the such Selling Manager’s account, or to the account of the such Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon by the parties heretoCompany and such Selling Manager, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, in addition to and in no way limiting the rights and obligations set forth in Section 7(a) hereof, the Company shall (A) indemnify and hold the such Selling Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the such Selling Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC DTC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the any Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiib) Notwithstanding anything If the Company wishes to issue and sell the contrary hereinShares other than as set forth in Section 3(a) hereof, it will notify a Manager of the proposed terms of such issuance and sale (each, a “Placement”). If such Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Company and such Manager shall not sell (1) Series A Preferred Shares at will enter into a price higher than Terms Agreement setting forth the Series A Maximum Priceterms of such Placement. For In the purposes hereofevent of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the “Series A Maximum Price” terms of such Terms Agreement will control.
(c) Under no circumstances shall mean: (a) through October 4, 2020, the product aggregate gross sales proceeds of the Shares sold pursuant to this Agreement exceed the lesser of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale amount set forth in Section 1 hereof and (ii) 1.005; the amount available for offer and sale under the Registration Statement, nor shall the aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized to be issued and sold from time to time under this Agreement by the Board of Directors of the Company, or a duly authorized committee thereof, and notified to the Managers in writing. The Managers shall have no responsibility for maintaining records with respect to Shares available for sale under the Registration Statement or for determining the aggregate gross sales price, number or minimum price of Shares duly authorized by the Company.
(d) Each sale of the Shares through or to any Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement. The applicable Manager’s commitment, if any, to purchase Shares from the Company as principal shall be deemed to have been made on the basis of the accuracy of the representations and warranties of the Company, and performance by the Company of its covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth. At the time of each Terms Agreement, the applicable Manager shall specify the requirements, if any, for the applicable Bring-Down Documents.
(e) Subject to the limitations set forth herein and as may be mutually agreed upon by the Company and the Managers, sales effected pursuant to this Agreement may not be requested by the Company and need not be made by any Manager (i) during the period beginning on the day after the last day of each fiscal quarter or year of the Company and prior to the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations for such quarter or year (each, an “Earnings Announcement”), (ii) except as set forth in Section 3(f) hereof, at any time from and including an Announcement Date through and including the later to occur of (A) the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K, as applicable, that includes consolidated financial statements as of and for such quarter or year, as the case may be, covered by such Earnings Announcement (the “Filing Time”) and (bB) such Manager shall have received the Bring-Down Documents applicable to such filing or (iii) during any other period in which the Company is, or could be deemed to be, in possession of material non-public information.
(f) Notwithstanding clause (ii) of Section 3(e) hereof, if the Company wishes to request the offer or sale of any Shares by a Manager at any time during the period from and including an Announcement Date with respect to an Earnings Announcement through and including the corresponding Filing Time, (i) unless the Company has previously filed a Current Report on October 5, 2020 Form 8-K pursuant to Item 2.02 (provided that the information included in such Form 8-K is deemed “filed” under the Exchange Act and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excludingnot “furnished” thereunder), the date Company shall prepare and deliver to such Manager (with a copy to counsel for the Managers) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to such Manager, and, prior to its filing, obtain the written consent of salesuch Manager to such filing (which consent shall not be unreasonably withheld), (ii) except as may be otherwise agreed by such Manager, such Manager shall have received the Bring-Down Documents applicable to the filing of such Earnings 8-K, (iii) the Company shall afford such Manager the opportunity to conduct a due diligence review in accordance with Section 4(v) hereof prior to filing such Earnings 8-K and (iv) the Company shall file such Earnings 8-K with the Commission in a manner that is deemed “filed” under the Exchange Act and not “furnished” thereunder. For purposes of clarity, the parties hereto agree that (A) the delivery of the Bring-Down Documents referred to in clause (ii) of this Section 3(f) shall not relieve the Company from any of its obligations under this Agreement with respect to any Bring-Down Delivery Date that occurs subsequent to such Filing Time and (B) this Section 3(f) shall in no way affect or limit the operation of clauses (i) and (iii) of Section 3(e) hereof, which shall have independent application.
(g) The Company acknowledges and agrees that (i) there can be no assurance that any Manager will be successful in selling the Shares, (ii) no Manager will incur liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by such Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement and (iii) no Manager shall be under any obligation to purchase Shares on a principal basis pursuant to this Agreement except as otherwise specifically agreed by such Manager and the Company pursuant to a Terms Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Chesapeake Utilities Corp)
Sale and Delivery of Shares. (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 or to the Manager, as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum NumberAmount), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b2(a), Section 3(a)(vi) and Section 4(o4(p) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiib) If the Company wishes to issue and sell the Shares other than as set forth in Section 3(a) hereof (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Company, the Operating Partnership and the Manager will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(i) Under no circumstances shall the aggregate gross sales proceeds of the Shares sold pursuant to this Agreement exceed the lesser of (A) the Maximum Amount and (B) the amount available for offer and sale under the Prospectus and the Registration Statement, nor shall the aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized to be sold under this Agreement by the Company’s Board of Directors, or a duly authorized committee thereof, and notified to the Manager in writing. Further, under no circumstances shall the aggregate gross sales proceeds from Shares sold pursuant to this Agreement together with the Shares sold pursuant to the Alternative Distribution Agreements, including any separate Terms Agreement or similar agreement covering principal transactions described herein and in the Alternative Distribution Agreements, exceed the Maximum Amount.
(ii) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party, and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(d) Each sale of the Shares through or to the Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement.
(i) Notwithstanding anything any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale of, any Shares and, by notice to the contrary hereinManager, shall cancel any instructions for the offer or sale of any Shares, and the Manager shall not be obligated to offer or sell any Shares: (x) during any period in which the Company is, or could be deemed to be, in possession of material non-public information, or (y) except as provided in clause (ii) of this Section 3(e), from seven calendar days prior to the date (each, an “Announcement Date”) of any public announcement or release disclosing the Company’s results of operations or financial condition for a completed quarterly or annual fiscal period through and including the time that is 24 hours after the Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such announcement or release.
(ii) If the Company wishes to offer, sell or deliver Shares at any time during the period from and including an Announcement Date through and including the time that is 24 hours after the corresponding Filing Time, the Company shall (1) Series A Preferred Shares prepare and deliver to the Manager (with a copy to its counsel) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections, similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Manager, and obtain the consent of the Manager to the filing thereof (such consent not to be unreasonably withheld), (2) provide the Manager with the certificate, opinions/letters of counsel and Comfort Letter called for by Sections 4(p), (q), (r) and (s) hereof, respectively, (3) afford the Manager the opportunity to conduct a due diligence review in accordance with Section 4(w) hereof and (4) file such Earnings 8-K with the Commission, then the provisions of clause (y) of Section e(i) shall not be applicable for the period from and after the time at a price higher than which the Series A Maximum Priceforegoing conditions shall have been satisfied (or, if later, the time that is 24 hours after relevant Announcement Date) through and including the time that is 24 hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For the purposes hereofof clarity, the “Series A Maximum Price” parties hereto agree that (A) the delivery of any certificate, opinions/letters of counsel and Comfort Letter pursuant to this Section 3(e) shall mean: (a) through October 4not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, 2020as the case may be, including, without limitation, the product obligation to deliver certificates, opinions/letters of counsel and Comfort Letters as provided in Section 4 hereof and (B) this clause (ii) shall in no way affect or limit the operation of the provisions of clause (x) of Section 3(e)(i), which shall have independent application.
(f) The Company acknowledges and agrees that (i) $25.00 plus any accrued and unpaid dividends per share tothere can be no assurance that the Manager will be successful in selling the Shares, but excluding, the date of sale and (ii) 1.005; the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell Shares in accordance with the terms of this Agreement, and (biii) the Manager shall be under no obligation to purchase Shares on October 5a principal basis pursuant to this Agreement unless a Terms Agreement, 2020 in form and thereaftersubstance mutually satisfactory to the Company, $25.00 plus the Operating Partnership and the Manager, shall have been executed by the Company, the Operating Partnership and the Manager.
(g) The Company agrees that any accrued and unpaid dividends per share tooffer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through one of the Manager or any of the Alternative Managers on any single given day, but excludingin no event by the Manager and one or more Alternative Managers, and the date Company shall in no event request that the Manager and any of salethe Alternative Managers sell Shares on the same day.
Appears in 1 contract
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, an Agent acting as sales agent and/or principal, or directly to an Agent acting as and when it provides instructions, in its discretion, for principal from time to time (the sale of the Shares“Designated Agent”), and the Manager Designated Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares Shares. Sales of the Shares, if any, through the Designated Agent acting as sales agent or directly to the Designated Agent acting as principal will be made by means of ordinary brokers’ transactions on Nasdaq, in negotiated transactions or otherwise at market prices prevailing at the following termstime of sale, at prices related to prevailing market prices or at negotiated prices or by any other method deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the 1933 Act. Other than Section 3(o), nothing contained herein restricts, nor may be deemed to restrict, the Company from undertaking another offering of its securities, including pursuant to separate registrations under the 1933 Act (or any exemption from such registration), or another offering under the Registration Statement.
(ib) The Subject to instructions to sell Shares delivered pursuant to this Section 2(b) or the applicable Terms Agreement, the Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager Designated Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE Nasdaq is scheduled to close prior to its regular weekday closing time), (Beach, a “Trading Day”) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) that the Company has satisfied its obligations under Section 6 hereofof this Agreement and that the Company has instructed the Designated Agent to make such sales. The For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Company will designate or its Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which the Designated Agent is acting for the Company in a notice delivered capacity other than as Agent under this Agreement. On any Trading Day, the Company may instruct the Designated Agent by electronic mail telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged by the Designated Agent) as to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum dollar value of Shares or number of Shares to be sold by the Manager daily as agreed to by the Manager Designated Agent on such day (in any event not in excess of the amount number available for issuance under the Prospectus and the currently effective Registration Statement Statement) and the minimum price per Share at which such Shares may be sold and in accordance with such other terms specified by the Company in connection with such instruction. For purposes of this Section 2, the notice parties for each of the Company and the Agents are set forth on Schedule 2 to this Agreement. Subject to the terms and conditions hereof, the Designated Agent shall use its commercially reasonable efforts to sell as sales agent all of the Shares so designated by the Company and in the manner and on the terms so designated by the Company. The Company and the Designated Agent each acknowledge and agree that (A) there can be no assurance that the Designated Agent will be successful in selling the Shares, (B) the Designated Agent will incur no liability or obligation to the Company or any other person or entity if they do not sell Shares for any reason other than a failure by the Designated Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement, and (C) the Designated Agent shall be under no obligation to purchase Shares on a principal basis except as otherwise specifically agreed by each of the Designated Agent and the Company pursuant to this Agreement and the applicable Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares by the Company shall be effected only by or through one Agent on any Trading Day.
(c) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Designated Agent as sales agent shall not sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in an amount a number in excess of the amount number or maximum aggregated dollar value of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company Company’s board of directors, or a duly authorized committee thereof, and mutually agreed by the Manager. Subject notified to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined Designated Agent in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionwriting. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail)Designated Agent, suspend the offering of the Shares or the Designated Agent may, upon notice to the Company, suspend the offering of the Shares with respect to which the Designated Agent is acting as sales agent for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Any notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect given pursuant to the delivery of certificatespreceding sentence may be given by telephone (confirmed promptly by telecopy or email, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodwhich confirmation will be promptly acknowledged).
(iiid) The Manager hereby covenants and agrees not to make gross sales price per share of any sales of Shares on behalf of the Company, sold pursuant to this Section 3(a), other than (A) Agreement by means of At the Market Offerings and (B) such other Designated Agent acting as sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon the prevailing market price at the time of the sales of the Shares sold by the Company and the Manager.
(iv) Designated Agent on Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Manager, as an agent of the Company, Designated Agent for sales of Shares with respect to which the Designated Agent acts as sales agent shall be at a mutually agreed rate, not up to exceed 2.0% of the gross sales price of any the Shares for amounts of Shares sold pursuant to this Section 3(a)Agreement. The Company may sell Shares to the Designated Agent, acting as principal, at a price agreed upon with the Designated Agent at the relevant Applicable Time and pursuant to a separate Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any federal, state, local or foreign governmental or self-regulatory organization commission, board, authority, agency, court, administrative or other governmental body having jurisdiction over the Company in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Designated Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(ve) If acting as a sales agent hereunder, the Manager Designated Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Nasdaq, each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager such Designated Agent with respect to such sales.
(vif) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement and any Terms Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) authorized but unissued (less Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized capital stock), (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement or any Terms Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Designated Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing.
(g) Settlement for sales of Shares pursuant to this Section 3(a) 2 will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Designated Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Designated Agent for settlement on such date shall be delivered by the Company to the Designated Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Designated Agent’s account at The Depository Trust Company against payments by the Designated Agent of the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds delivered to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager Designated Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Designated Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viih) At each Time Notwithstanding any other provision of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)this Agreement, the Company and the Operating Partnership Agents agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agents shall not be obligated to sell, during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, or during any other period in which the Company is, or could be deemed to be, in possession of material non-public information.
(i) At each Applicable Time, Settlement Date, Registration Amendment Date and each Company Periodic Report Date, the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager Agents to use its their commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 1 contract
Samples: At the Market Equity Offering Sales Agreement (Gladstone Commercial Corp)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell exclusively through or to an Agent (the Manager, “Designated Agent”) acting as sales agent and/or principal, or directly to an Agent acting as and when it provides instructions, in its discretion, for the sale of the Sharesprincipal from time to time, and the Manager Designated Agent agrees to use its commercially reasonable efforts to sell, sell as sales agent for the Company, the Shares on Shares. Nothing contained herein restricts, nor may be deemed to restrict, the following termsCompany from undertaking another offering of its securities pursuant to a separate registration under the 1933 Act (or any exemption from such registration), or another offering under the Registration Statement, provided the Company complies with Section 3(o) hereof. Sales of the Shares, if any, through a Designated Agent acting as sales agent or directly to the Designated Agent acting as principal may be made in transactions that are deemed to be “at the market offerings” as defined in Rule 415 under the 1933 Act.
(ib) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager Designated Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE Nasdaq is scheduled to close prior to its regular weekday closing time), (Beach, a “Trading Day”) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) that the Company has satisfied its obligations under Section 6 hereofof this Agreement and that the Company has instructed the Designated Agent to make such sales. The For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Company will designate or its Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which such Designated Agent is acting for the Company in a notice delivered capacity other than as Designated Agent under this Agreement. On any Trading Day, the Company may instruct the Designated Agent by electronic mail telephone (confirmed promptly by telecopy or email by any of the individuals from the Company set forth on Schedule 1 and shall be addressed to each of the Manager substantially in individuals from the form attached hereto Designated Agent set forth on Schedule 1, which confirmation will be promptly acknowledged by the Designated Agent) as Schedule C (a “Placement Notice”) to the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager Designated Agent on such day (in any event not in excess of the amount number available for issuance under the Prospectus and the currently effective Registration Statement Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Designated Agent shall use its commercially reasonable efforts to sell as sales agent all of the Shares so designated by the Company. The Company and the Designated Agent each acknowledge and agree that (A) there can be no assurance that the Designated Agent will be successful in selling the Shares, (B) the Designated Agent will incur no liability or obligation to the Company or any other person or entity if they do not sell Shares for any reason other than a failure by the Designated Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement, and (C) the Designated Agent shall be under no obligation to purchase Shares on a principal basis except as otherwise specifically agreed by each of the Designated Agent and the Company pursuant to a Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Designated Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in an amount a number in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company Company’s board of directors, or a duly authorized committee thereof, and mutually agreed by the Manager. Subject notified to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined Designated Agent in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionwriting. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail)Designated Agent, suspend the offering of the Shares or the Designated Agent may, upon notice to the Company, suspend the offering of the Shares with respect to which the Designated Agent is acting as sales agent for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Any notice given pursuant to the preceding sentence may be given by telephone by any of the individuals from the Company set forth on Schedule 1 (confirmed promptly by telecopy or email and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect addressed to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination each of the Suspension Periodindividuals from the Agents set forth on Schedule 1, which confirmation will be promptly acknowledged).
(iiid) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Designated Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Designated Agent on Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Designated Agent for sales of Shares with respect to which the Designated Agent acts as sales agent shall be up to 3.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. The Company may sell Shares to an Agent, acting as principal, at a price agreed upon with such Agent at the relevant Applicable Time and pursuant to a separate Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). Such Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(ve) If acting as a sales agent hereunder, the Manager Designated Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Nasdaq, each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager such Designated Agent with respect to such sales.
(vif) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement and any Terms Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in the preamble paragraph of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement or any Terms Agreement by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Designated Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing.
(g) Settlement for sales of Shares pursuant to this Section 3(a) 2 will occur on the second first business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Trading Day following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Designated Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through the Designated Agent for settlement on such date shall be delivered by the Company to the Designated Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Designated Agent’s account at The Depository Trust Company against payments by the Designated Agent of the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds delivered to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager Designated Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Designated Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viih) At each Time Notwithstanding any other provision of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)this Agreement, the Company and the Operating Partnership Designated Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Designated Agent shall not be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information.
(i) At each Applicable Time, Settlement Date, Registration Statement Amendment Date and each Company Periodic Report Date, the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager Designated Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 1 contract
Samples: Equity Distribution Agreement (Pulse Biosciences, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, Agent acting as sales agent and/or principaland the Agent agrees to use its commercially reasonable efforts to sell as sales agent for the Company, the Shares. The Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company other than (A) by means of ordinary brokers’ transactions that qualify for delivery of a Prospectus to NASDAQ in accordance with Rule 153 under the 1933 Act (such transactions are hereinafter referred to as “At the Market Offerings”) and when it provides instructions, (B) such other sales of the Shares on behalf of the Company in its discretion, for capacity as agent of the Company as shall be agreed by the Company and the Agent. The Agent covenants and agrees that it shall not engage in a sale of Shares on the Company's behalf that would constitute the sale of a "block" under Rule 10b-18(a)(5) under the SharesExchange Act or a "distribution" within the meaning of Rule 100 of Regulation M under the Exchange Act without the Company's prior written consent. Subject to the previous sentence, the Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is not an At the Market Offering and the Company consents to such sale, the Company will provide to the Agent, at the Agent’s request and upon reasonable advance notice to the Company, on or prior to the Settlement Date (as defined below) for such transaction, the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 hereof, each dated the Settlement Date, and such other documents and information as the Agent shall reasonably request. Solely with respect to such sales that would constitute a "block" or a "distribution," the Agent shall use commercially reasonable efforts to assist the Company in obtaining performance of its obligations by each purchaser whose offer to purchase Shares has been solicited by the Agent and accepted by the Company. Each time that the Company wishes to issue and sell Shares hereunder (each, a “Placement”), it will notify the Agent by email notice (or other method mutually agreed to in writing by the parties) containing the parameters in accordance with which it desires Shares to be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Schedule I. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule II (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Agent set forth on Schedule II, as such Schedule II may be amended from time to time. If the Agent wishes to accept such proposed terms included in the Placement Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same Business Day on which such Placement Notice is delivered to the Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Agent set forth on Schedule II) accepting such terms (the "Agent Acceptance") or setting forth the terms that the Agent is willing to accept. Where the terms provided in the Placement Notice are proposed to be modified as provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Agent until the Company delivers to the Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the "Acceptance"), which email or other communication shall be addressed to all of the individuals from the Company and the Agent set forth on Schedule II and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Agent, on the same Business Day. The Placement Notice shall be effective upon receipt by the Company of the Agent Acceptance or, if modified as provided above, upon receipt by the Agent of the Company Acceptance, as the case may be, unless and until (i) the entire amount of the Shares covered by the Acceptance have been sold, (ii) in accordance with the notice requirements set forth in Section 4(c), the Company suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) the Agreement has been terminated under the provisions of Section 9. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement unless and until the Company delivers a Placement Notice to the Agent and there occurs with respect thereto either (i) an Agent Acceptance or (ii) a Company Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the relevant Acceptance and herein. In the event of a conflict between the terms of this Agreement and the terms of an Acceptance, the terms of the Acceptance will control. Subject to the terms and conditions hereof, upon the existence of an Acceptance, the Agent shall use its commercially reasonable efforts to sell as sales agent Shares designated in the Acceptance up to the amount specified, and otherwise in accordance with the terms of such Acceptance. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling Shares and (B) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
(b) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Manager agrees Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, as sales agent for the Company, the any Shares on the following terms.
(i) The Shares are at a price lower than the minimum price therefor authorized from time to be sold on a daily basis time, or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (Aii) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makerBoard, or directly to any customer or client of a duly authorized committee thereof, and as set forth in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionapplicable Acceptance. In addition, the Company or the Manager Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering telecopy or email to all of the individuals of the other party set forth on Schedule II, which confirmation will be promptly acknowledged by the receiving party) suspend or refuse to undertake any sale of Shares designated in such Acceptance for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice. Each of the parties hereto agrees that no such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) effective against the other unless it originates from an individual named on Schedule II and 4(w) with respect is made to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination individuals of the Suspension Periodother party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time.
(iiic) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on NASDAQ or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be equal to 2% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vd) If acting as sales agent hereunder, the Manager The Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE NASDAQ each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales. For the avoidance of doubt, such written confirmation will be provided to the Company no later than the opening of trading on the immediately following trading day on NASDAQ.
(vie) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in Section 1 of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement, the RBC Agreement and the KCM Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s Board, or a duly authorized committee thereof, and notified to the Agent in writing as set forth in the applicable Placement Notice. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Agent shall calculate and provide in writing to the Company, on a monthly basis, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(f) Settlement for sales of Shares pursuant to this Section 3(a) 4 and made in accordance with the terms of the applicable Acceptance will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day for NASDAQ (other than a day on the NYSE which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the sale of Agent for settlement on such Shares date shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon against payments by the parties hereto, which Agent of the Net Proceeds from the sale of such Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable formsame day funds delivered to an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viig) At each Time of SaleApplicable Time, each Settlement Date and each Representation Date (each, as such term is defined in Section 2(b), Section 3(a)(vi6(n) and Section 4(o) hereof, respectivelyherein), the Company Company, the Adviser and the Operating Partnership Administrator shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any The obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof4 of this Agreement.
(viiih) Notwithstanding anything The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Common Stock or any other equity security of the contrary hereinCompany pursuant to this Agreement shall only be effected by or through only one of Agent, RBC or KCM on any single given day, but in no event by more than one of them, and the Manager Company shall not in no event request that more than one of Agent, RBC or KCM sell (1) Series A Preferred Shares at a price higher than shares of Common Stock on the Series A Maximum Price. For the purposes hereofsame day; provided, the “Series A Maximum Price” shall mean: (a) through October 4however, 2020, the product of that (i) $25.00 plus any accrued and unpaid dividends per share to, but excludingthe foregoing limitation shall not apply to sales solely to employees of the Company, the date Adviser, the Administrator or their respective affiliates, or to a trustee or other person acquiring such securities for the accounts of sale such persons and (ii) 1.005; such limitation shall not apply on any day during which no sales are made pursuant to this Agreement.
(i) Except as may be mutually agreed by the Company and the Agent, the Company and the Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, (i) with respect to the Company’s quarterly filings on Form 10-Q, during any period commencing upon the 30th day following the end of each fiscal quarter and ending on the date on which the Company files with the Commission a Prospectus Supplement under Rule 497 relating to the Shares that includes updated financial information as of the end of the Company’s most recent quarterly period (the “10-Q Filing”) and (bii) with respect to the Company’s annual report filings on October 5Form 10-K, 2020 during any period commencing upon the 50th day following the end of the Company’s fiscal year and thereafterending on the date on which the Company files with the Commission a Prospectus Supplement under Rule 497 relating to the Shares that includes updated audited financial information as of the end of the Company’s most recent fiscal year (the “10-K Filing”) (each of a 10-Q Filing and/or a 10-K Filing shall also be referred to herein as a “Quarterly 497 Filing”). To the extent the Company releases its earnings for its most recent quarterly period or fiscal year, $25.00 plus any accrued as applicable (an “Earnings Release”) before it files with the Commission its quarterly report on Form 10-Q for such quarterly period or annual report on Form 10-K for such fiscal year, as applicable, then the Agent and unpaid dividends per share to, but excluding, the Company agree that no sales of Shares shall take place for the period beginning on the date of salethe Earnings Release and ending on the date of the applicable Quarterly 497 Filing. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Agent, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is in possession of material non-public information.
Appears in 1 contract
Samples: Equity Distribution Agreement (Prospect Capital Corp)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but and subject to the terms and conditions herein set forth, the Company agrees to issue and sell through or to the ManagerManagers, as sales agent agents and/or principalprincipals, as and when it provides instructions, in its discretion, for the sale of the Shares, and the each Manager agrees to use its commercially reasonable efforts efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell, as sales agent for the Company, the Shares on the following termsterms set forth below. Notwithstanding anything to the contrary in this Agreement, any Manager may decline, for any reason in its sole discretion, to act as sales agent for the Company hereunder with respect to one or more sets of Company instructions for the sale of Shares.
(ia) The Shares are to be sold by one of the Managers on a daily basis or otherwise as shall be mutually agreed upon by the Company and the Manager Managers on any day that (A) which is a trading day for on the NYSE Nasdaq (other than each a day “Trading Day”) on which the NYSE is scheduled to close prior to its regular weekday closing time), (BA) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto A hereto, as such Schedule A may be amended from time to time (the “Authorized Company Representatives”), has instructed such Manager (with notice of such instruction to each of the Manager by telephone (confirmed promptly by electronic mailother Authorized Representatives at such time) to make such sales of Shares and (CB) the Company has satisfied its obligations under Section Sections 4, 5 and 6 hereof. The On a Trading Day that the Company wishes to sell the Shares, the Company may sell the Shares through only one Manager and, if it determines to do so in its discretion, the Company will designate (x) in a notice delivered by electronic mail to the Manager substantially in the form attached as Exhibit 3(a)(i) hereto or (y) by telephone (confirmed promptly by electronic mail substantially in the form attached as Schedule C (a “Placement Notice”Exhibit 3(a)(i) hereto) the maximum number amount of the Shares to be sold by the such Manager daily as agreed to by the such Manager (in any event the Company shall not instruct such Manager to sell Shares in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of the Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number)Agreement, any minimum price below which sales of the Shares may not be effected effected) and any other limitations specified by the Company and mutually agreed by such Manager. On any Trading Day, the Company shall give at least one business day’s prior notice (confirmed promptly by electronic mail) to the relevant Manager as to any change of the Manager through whom sales of the Shares as sales agent will be made. The Manager through whom sales of the Shares as sales agent are then being made pursuant to this Section 3(a) is referred to as the “Selling Manager”. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or other security holders of the Company Parties or to a trustee or other person acquiring the Shares for the accounts of such persons in which BofA, Barclays or Citi is acting for the Company in a capacity other than as Manager under this Agreement. Subject to the terms and conditions of this Section 3(a), the Manager Managers may sell the Shares by any method permitted by law deemed to be including, without limitation, an “at the marketmarket offering” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation or sales made directly on the NYSEby means of ordinary brokers’ transactions, on any other existing trading market for the Shares to or through a market makermaker at market prices prevailing at the time of sale, at prices related to prevailing market prices or directly at negotiated prices (such transactions are hereinafter referred to any customer or client as “At the Market Offerings”). Subject to the terms and conditions of this Section 3(a) and the other terms and conditions specified herein (including, without limitation, the accuracy of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any representations and warranties of the Authorized Company Representatives, may instruct and the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated performance by the Company of its covenants and other obligations contained herein and the satisfaction of the additional conditions specified in any such instruction. In additionSection 6 hereof), the Company or the applicable Manager may, upon notice shall use its commercially reasonable efforts consistent with its normal trading and sales practices to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering offer and sell all of the Shares for a specified period (a “Suspension Period”)designated; provided, however, that (A) the Managers shall have no obligation to offer or sell any Shares, and the Company acknowledges and agrees that the Managers shall have no such Suspension Period shall apply equally obligation, in the event that an offer or sale of the Shares on behalf of the Company in the reasonable judgment of a Manager may cause such Manager to be deemed to be an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the Nasdaq that qualify for delivery of a Prospectus to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair Nasdaq in accordance with Rule 153 under the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension PeriodAct.
(iiib) The Manager Each of the Managers hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a)3, other than (A) by means of At the Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the such Manager.
(ivc) The compensation to the each Manager, as an agent of the Company, for sales of the Shares hereunder shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales actual sale execution price of any each Share sold by a Manager on the Nasdaq (as defined below), in the case of ordinary brokers’ transactions, or as otherwise agreed by the parties in other methods of sale (the “Sales Price”) of the Shares sold by such Manager pursuant to this Section 3(a)3. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vd) If the Company wishes to issue and sell the Shares other than as set forth in the foregoing provisions of this Section 3, it will notify a Manager of the proposed terms of such issuance and sale (each, a “Placement”). If such Manager, acting as sales agent hereunderprincipal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Company and such Manager will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control.
(e) Notwithstanding the foregoing, the Company may instruct the Managers (confirmed promptly by electronic mail) not to sell the Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or any Manager may, upon notice to the other parties hereto (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that such Suspension Period shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(n), 4(o), 4(p), 4(q) and 4(u) with respect to the delivery of certificates, opinions, or comfort letters to the Managers or the conducting of a due diligence session, in each case, during a Suspension Period, and that such obligations shall recommence on the termination of the Suspension Period.
(f) Each Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE Nasdaq each day on in which the Shares are sold pursuant to this Section 3(a) 3 setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, Company and (iii) the compensation commission payable by the Company to the such Manager with respect to such salessale of Shares.
(vig) Settlement for sales of the Shares pursuant to this Section 3(a) Agreement will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Nasdaq following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Shares sold through a Manager for settlement on such date shall be issued and delivered by the Company to such Manager against payment of the Net Proceeds from Proceeds, or, at such Manager’s election, the gross proceeds, for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the such Manager’s account, or to the account of the such Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares units in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. In the event that the relevant Manager delivers the gross proceeds of a given sale of Shares to the Company on a Settlement Date, the compensation payable to such Manager for such sale shall be set forth and invoiced in a periodic statement from the Manager to the Company and payment of such compensation shall be made promptly by the Company as directed by such Manager after the Company’s receipt of such periodic statement. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, in addition to and in no way limiting the rights and obligations set forth in this Agreement, the Company shall (A) indemnify and hold the such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the such Manager any commission to which it would otherwise be entitled absent such default. The Any Authorized Company Representatives Representative shall be the a permissible contact persons person for the Company for all matters related to the settlement of the transfer of the Shares through DWAC DTC for purposes of this Section 3(a)(vi)Section.
(viih) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the any Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof.
(viiii) Notwithstanding anything Under no circumstances shall the aggregate gross proceeds of the Shares sold pursuant to this Agreement exceed the lesser of (A) the amount set forth in Section 1 hereof and (B) the amount available for offer and sale under the Registration Statement, nor shall the aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized to be issued and sold from time to time under this Agreement by the Board of Directors of the Company, or a duly authorized committee thereof, and notified to the contrary hereinManagers in writing. The Managers shall have no responsibility for maintaining records with respect to Shares available for offer or sale under the Registration Statement or for determining the aggregate gross proceeds, number or minimum price of Shares duly authorized by the Company.
(j) Each offer and sale of the Shares through or to any Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement. The applicable Manager’s commitment, if any, to purchase Shares from the Company as principal shall be deemed to have been made on the basis of the accuracy of the representations and warranties of the Company, and performance by the Company of its covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth. At the time of each Terms Agreement the applicable Manager shall specify the requirements, if any, for the officers’ certificate, opinions, letters of counsel and comfort letters and due diligence session pursuant to this Agreement.
(k) Subject to the limitations set forth herein and except as otherwise may be mutually agreed upon by the Company and the Managers, sales effected pursuant to this Agreement may not sell be requested by the Company and need not be made by any Manager during the 14 calendar days prior to the date (1each, an “Announcement Date”) Series A Preferred Shares on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”), (ii) at any time from and including an Announcement Date through and including the later to occur of (A) the day that the Company files a price higher than Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the Series A Maximum Price. For same period or periods, as the purposes hereofcase may be, covered by such Earnings Announcement, and (B) the “Series A Maximum Price” shall mean: applicable Bring-Down Delivery Date of the Company referenced in Section 4(n) below, or (aiii) through October 4during any other period in which the Company is, 2020or could be deemed to be, the product in possession of material non-public information.
(l) The Company acknowledges and agrees that (i) $25.00 plus there can be no assurance that any accrued and unpaid dividends per share toManager will be successful in selling the Shares, but excluding, the date of sale and (ii) 1.005; no Manager will incur liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by such Manager to use its commercially reasonable efforts to sell such Shares in accordance with the terms of this Agreement, and (biii) no Manager shall be under any obligation to purchase Shares on October 5a principal basis pursuant to this Agreement except as otherwise specifically agreed by such Manager and the Company pursuant to a Terms Agreement.
(m) If either the Company or the Managers has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, 2020 it shall promptly notify the other parties, and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, sales of the date Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of saleeach party.
Appears in 1 contract
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the ManagerManagers, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagents, and the each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the applicable Manager on any day that (A) is a trading day for the NYSE Nasdaq Global Select Market (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Nasdaq”), (B) the Company, through any of the individuals listed as an authorized representatives representative of the Company on Schedule B I hereto (which such Schedule I may be amended by the “Authorized Company Representatives”from time to time by written notice to the Managers), has instructed the such Manager by telephone (or electronic mail, which order shall be confirmed promptly by such Manager (and accepted by the Company) by electronic mail) mail to make such sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement; provided, however, the Company may sell the Shares through only one Manager in any single trading day. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number amount of the Shares to be sold by the such Manager daily as agreed to by the such Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement Statement) and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below per Share at which sales of such Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managersold. Subject to the terms and conditions hereof, such Manager shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a), ) shall be the market price for shares of the Company’s Common Stock sold by such Manager may sell Shares by any method permitted by law deemed to be an “under this Section 3(a) on Nasdaq at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client time of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionssale of such Shares.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized The Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, acknowledges and agrees that (A) such Suspension Period shall apply equally to there can be no assurance that the applicable Manager and each Alternative Manager and will be successful in selling the Shares, (B) such Suspension Period shall not affect Manager will incur no liability or impair the parties’ respective obligations with respect to Shares sold hereunder prior obligation to the giving of Company or any other person or entity if it does not sell Shares for any reason other than a failure by such notice Manager to use commercially reasonable efforts consistent with its normal trading and providedsales practices and applicable law and regulations to sell such Shares as required under this Agreement, further, that there and (C) such Manager shall be under no obligations under Sections 4(o)obligation to purchase Shares on a principal basis pursuant to this Agreement, 4(p), 4(q), 4(r), 4(s) except as otherwise specifically agreed by such Manager and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension PeriodCompany.
(iii) The Company shall not authorize the issuance and sale of, and the applicable Manager shall not be obligated to use its commercially reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to such Manager in writing.
(iv) Each Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At ordinary brokers’ transactions between members of Nasdaq that qualify for delivery of a Prospectus to Nasdaq in accordance with Rule 153 under the Market Offerings Securities Act and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Managerapplicable Manager pursuant to a Terms Agreement.
(ivv) The compensation to the Manager, as an agent of the Company, a Manager for sales of the Shares with respect to which such Manager act as sales agent under this Agreement shall be at a mutually agreed rate, not up to exceed 2.01.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) (such compensation, the “Manager Compensation”) and payable as described in the succeeding subsection (vii) below. The remaining proceedsforegoing rate of compensation shall not apply when a Manager acts as principal, in which case the Company may sell Shares to such Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement.
(vi) The Managers shall provide written confirmation (which may be by facsimile or electronic mail) to the Company following the close of trading on Nasdaq each day in which the Shares are sold under this Section 3(a) setting forth the number of the Shares sold on such day, the aggregate gross sales proceeds and the Net Proceeds (as defined below) to the Company, and the compensation payable by the Company to the Managers with respect to such sales.
(vii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day following the date on which such sales are made (each such day, a “Settlement Date”), or on some other date that is agreed upon by the Company and a Manager in connection with a particular transaction. On each Settlement Date, the Shares sold through the Managers for settlement on such date shall be issued and delivered by the Company to the Managers against payment of the proceeds for the sale of such Shares. The amount of proceeds to be delivered to the Company on a Settlement Date against receipt of the Shares sold will be equal to (i) the aggregate offering price received by the Managers at which such Shares sold (the “Gross Proceeds”), after further deduction for (A) the Manager Compensation, (B) any other amounts due and payable by the Company to the Managers hereunder pursuant to Section 5(a) hereof, and (C) any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”) (such net amount, shall constitute the net proceeds to the Company from the sale of such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, or (ii) the Net Gross Proceeds. In the event that a Manager delivers the Gross Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also at a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from amounts set forth in clauses (i)(A), (B) and (C) of the sale of such Shares preceding sentence shall be delivered set forth and invoiced in a periodic statement from such Manager to the Company in same day funds to an account designated and payment of such amounts shall be made promptly by the Company in writing prior to such Settlement Date against after its receipt of the Shares soldthereof. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the such Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager Managers harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the such Manager any commission to which it would otherwise be entitled absent such default. The Authorized If any Manager breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, such Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)such Manager.
(viiviii) At each Time of SaleApplicable Time, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi4(k) and each Filing Date (as defined in Section 4(o) hereof, respectively4(x)), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the any Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiiix) Notwithstanding anything to the contrary hereinany other provision of this Agreement, the Company shall not request the sale of any Shares that would be sold, and a Manager shall not be obligated to sell (1) Series A Preferred during any period in which the Company is, or could reasonably be deemed to be, in possession of material non-public information; provided, however, that if the Company wishes to offer or sell Shares to a Manager as sales agent at a price higher than the Series A Maximum Price. For the purposes hereofany time during such period, the Company shall file with the Commission, to the extent necessary, such material non-public information.
(x) The Company or such Manager (with respect to itself only) may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend or terminate an offering of the Shares for any reason and at any time; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(b) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (each, a “Series A Maximum Price” shall mean: Placement”), it will notify the Manager or Managers of the proposed terms of such Placement. If such Manager or Managers, acting as principal, wishes to accept such proposed terms (awhich it may decline to do for any reason in its sole discretion) through October 4or, 2020following discussions with the Company wishes to accept amended terms, such Manager or Managers and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or such Manager or Managers unless and until the Company and such Manager or Managers have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the product terms of such Terms Agreement will control.
(c) Each sale of the Shares to a Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, such Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by a Manager. The commitment of the Managers to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by a Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, managers acting together with such Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by such Manager.
(d) Under no circumstances shall the number and aggregate amount of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) $25.00 plus any accrued and unpaid dividends per share tothe aggregate amount set forth in Section 1, but excluding, the date of sale and (ii) 1.005; the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and (b) on October 5aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, 2020 or a duly authorized committee thereof, and thereafternotified to the Managers in writing. The Company shall have responsibility for maintaining records with respect to the aggregate number of Shares sold and for otherwise monitoring the availability of Shares for sale under the Registration Statement and for insuring that the aggregate number of Shares offered and sold does not exceed, $25.00 plus and the price at which any accrued and unpaid dividends per share to, but excludingShares are offered or sold is not lower than, the date aggregate number of saleShares and the minimum price authorized from time to time by the Company’s board of directors or, if permitted by applicable law and the Company’s charter and by-laws, a duly authorized committee thereof.
(e) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding any other provision of this Agreement the Company shall not request the sale of any Shares that would be sold, and any Manager shall not be obligated to sell, during any period in which the Company is, or could reasonably be deemed to be, in possession of material non-public information.
Appears in 1 contract
Samples: Equity Distribution Agreement (United Airlines, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the ManagerManagers, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagents, and the each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by Each time that the Company wishes to issue and the Manager on sell any day that Shares hereunder (A) is each, a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time“Placement”), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto it will notify a Manager (the “Authorized Company RepresentativesDesignated Manager”), has instructed ) by email notice (or other method mutually agreed to in writing by the Manager by telephone (confirmed promptly by electronic mailparties) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) containing the maximum parameters in accordance with which it desires such Shares to be sold, which shall at a minimum include the number of Shares to be issued, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus Trading Day and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Managermade, a form of which containing such minimum sales parameters necessary is attached hereto as Schedule 1. Subject to the terms and conditions of this Section 3(a)hereof, the Designated Manager may shall use its reasonable efforts to sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for all of the Shares subject to or through a market maker, or directly to any customer or client of Placement Notice in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactionstime frame specified therein.
(ii) Notwithstanding the foregoing, the Company, through The Placement Notice shall originate from any of the Authorized individuals from the Company Representativesset forth on Schedule 2 (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Designated Manager set forth on Schedule 2, as such Schedule 2 may instruct the Manager by telephone (confirmed promptly by electronic mail) not be amended from time to sell Shares if such sales cannot time. The Placement Notice shall be effected at or above the price designated effective upon receipt by the Designated Manager unless and until (i) the entire amount of the Shares to be sold under the Placement Notice have been sold, (ii) the Company suspends or terminates the Placement Notice for any reason in its sole discretion, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice or (iv) this Agreement has been terminated under the provisions of Section 8. It is expressly acknowledged and agreed that neither the Company nor the Designated Manager will have any such instruction. In additionobligation whatsoever with respect to a Placement or any Shares unless and until the Company delivers a Placement Notice to the Designated Manager, and then only upon the terms specified therein and herein.
(iii) The Company acknowledges and agrees that (A) there can be no assurance that the Designated Manager will be successful in selling the Shares, (B) the Designated Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Designated Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Designated Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Designated Manager and the Company.
(iv) The Company shall not authorize the issuance and sale of, and the Designated Manager shall not be obligated to use its reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Designated Manager in writing in the Placement Notice. The Company or the Designated Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Periodnotice.
(iiiv) The Designated Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At ordinary brokers’ transactions between members of the Nasdaq Stock Market Offerings LLC that qualify for delivery of a Prospectus to the Nasdaq Stock Market LLC in accordance with Rule 153 (such transactions are hereinafter referred to as “Continuous Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the ManagerDesignated Manager pursuant to a Terms Agreement.
(ivvi) The compensation to the Manager, as an agent of the Company, Designated Manager for sales of the Shares with respect to which the Designated Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, not up to exceed 2.03.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) and payable as described in the succeeding subsection (viii) below. The foregoing rate of compensation shall not apply when a Manager acts as principal, in which case the Company may sell Shares to the Designated Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salessales (the “Transaction Fees”), shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(vvii) If acting as sales agent hereunder, the The Designated Manager shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable to the Company following the close of trading on the NYSE Nasdaq each day on which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Designated Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the Designated Manager to the Company, with payment to be made by the Company promptly after its receipt thereof.
(viviii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the Designated Manager for settlement on such date shall be issued and delivered by the Company to the Designated Manager against payment of the aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Designated Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Designated Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Designated Manager any commission to which it would otherwise be entitled absent such default. The Authorized If the Designated Manager breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, the Designated Manager will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)Designated Manager.
(viiix) At each Applicable Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b4(k), Section 3(a)(vi) and Section 4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Designated Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) If the Company wishes to issue and sell the Shares pursuant to this Agreement to a Designated Manager as principal, it will propose the terms of such sale to the Designated Manager. If a Designated Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Designated Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Designated Manager unless and until the Company and the Designated Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to a Designated Manager as principal shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Designated Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Designated Manager. The commitment of the Designated Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Designated Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Designated Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Designated Manager.
(d) Under no circumstances shall the number and aggregate gross sales price of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) the aggregate amount set forth in Section 1, (ii) the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Designated Manager in writing in the Placement Notice.
(e) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding anything to any other provision of this Agreement the contrary hereinCompany shall not request the sale of any Shares that would be sold, and the Designated Manager shall not sell be obligated to sell, during any period in which the Company is, or would reasonably be deemed to be, in possession of material non-public information.
(1g) Series A Preferred With respect to the offering and sale of Shares at a price higher than the Series A Maximum Price. For the purposes hereofpursuant to this Agreement, the “Series A Maximum Price” Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, and any sales of Shares shall mean: (a) only be effected by or through October 4a single Manager on any single given day, 2020, and the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, Company shall in no event request that more than one Manager offer or sell Shares pursuant to this Agreement on the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of salesame day.
Appears in 1 contract
Samples: Equity Distribution Agreement (Apellis Pharmaceuticals, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Shares from time to time through or to the ManagerAgents, acting as sales agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Sharesagents, and the Manager agrees Agents agree to use its their commercially reasonable efforts to sell, as sales agent agents for the Company, the Shares on the following terms.
(i) i. The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon to by the Company and the Manager an Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager such Agent by telephone (confirmed promptly by electronic mail) to make such sales (each offering of Shares pursuant to a set of instructions, a “Continuous Offering”) and (C) the Company has satisfied its obligations under Section 6 hereofof this Agreement. The Company Company’s instructions will designate in designate, at a notice delivered by electronic mail minimum, the day or days on which Shares are to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) be sold, the maximum number amount of the Shares to be sold by the Manager such Agent daily as agreed to by the Manager such Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be less (ii) any amounts already issued and sold under pursuant to this Agreement) and the minimum price per Share at which such Shares may be sold. The Company’s instructions shall be effective upon acceptance by telephone (confirmed promptly by electronic mail) of the terms contained therein by an Agent (which any Agent may decline to do for any reason, in its sole discretion) until (i) the entire amount of the Shares designated in such instructions have been sold, (ii) the Company terminates the instructions by telephone (confirmed promptly by electronic mail) at any time in its sole discretion, (iii) the Company issues subsequent instructions that supersede those in earlier instructions, (iv) the Company or both Agents have suspended the sale of the Shares in accordance with Section 3(a)(iii) below, or (v) this Agreement or, together with all sales has been terminated under the provisions of Shares under this Agreement and the Alternative Distribution Agreements, in an amount in excess of the Maximum Number), any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the ManagerSection 8. Subject to the terms and conditions hereof, such Agent shall use its commercially reasonable efforts to sell on a particular day, consistent with its normal trading practices, all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(a) shall be the market price for shares of the Company’s Common Stock sold by an Agent under this Section 3(a) on the NYSE at the time of such sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share designated by the Company at which such Shares may be sold).
ii. The Company acknowledges and agrees that (A) there can be no assurance that any Agent will be successful in selling the Shares, (B) no Agent will incur any liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by such Agent to use their commercially reasonable efforts consistent with their normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) no Agent shall be under any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Agents and the Company.
iii. The Company shall not authorize the issuance and sale of, and the Agents shall not be obligated to use their commercially reasonable efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Agents in writing. The Company or any Agent may, upon notice to the other parties hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for any reason and at any time; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice; provided, further, that any such Suspension by an Agent shall not affect the Company’s and the other Agents’ respective obligations hereunder.
iv. The Agents hereby covenant and agree not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3(a), the Manager may sell Shares other than (A) by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under of the Act (an “At Act, including, without limitation, sales of the Market Offering”)Shares by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153, including without limitation sales made directly on of the NYSE, Shares on any other existing trading market for the Common Stock and sales of the Shares to or through a market maker, or directly to any customer or client of the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings maker and (B) such other sales of the Shares, including sales of the Shares in privately negotiated transactions, on behalf of the Company in its their capacity as agent agents of the Company as shall be mutually agreed upon by the Company and the ManagerAgents pursuant to a Terms Agreement.
(iv) v. The compensation to the Manager, as an agent of the Company, Agents for sales of the Shares with respect to which the Agents act as sales agents under this Agreement shall be at a mutually agreed rate, not up to exceed 2.0% of the gross sales price of any the Shares sold pursuant to this Section 3(a)) by the Agents and payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when the Agents act as principals, in which case the Company may sell Shares to the Agents as principals at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed on the Agents by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”).
(v) If acting as sales agent hereunder, the Manager vi. The Agents shall provide written confirmation to the Company (which may be by facsimile or electronic mail) as soon as is reasonably practicable to the Company promptly following the close of trading on the NYSE each day on in which the Shares are sold pursuant to under this Section 3(a) setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager Agents with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the Agents to the Company, with payment to be made by the Company promptly after its receipt thereof, unless deducted from the gross proceeds on the Settlement Date as set forth in subsection (vii) below.
(vi) vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE Business Day following the date on which such sales are made (each such dateday, a “Settlement Date”). On each Settlement Date, the Shares sold through an Agent for settlement on such date shall be issued and delivered by the Company to such Agent against payment of the Net Proceeds from for the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares soldShares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Managersuch Agent’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWACDTC”) or by such other means of delivery as may be mutually agreed upon in return for payments in same day funds delivered to the account designated by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable formCompany. If the Company, Company or its transfer agent (if applicable), ) shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager Agents harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager Agents any commission to which it they would otherwise be entitled absent such default. The Authorized If an Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company Representatives shall be the contact persons on any Settlement Date for the Shares delivered by the Company, such Agent will pay the Company for all matters related interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi)such Agent.
(vii) viii. At each Applicable Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b), Section 3(a)(vi) and Section 4(o) hereof, respectively)Date, the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this AgreementAgreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager Agents to use its their commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereofof this Agreement.
(viiib) Notwithstanding anything If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify the Agents of the proposed terms of such Placement. If the Agents, acting as principals, wish to accept such proposed terms (which they may decline to do for any reason in their sole discretion) or, following discussions with the Company wish to accept amended terms, the Agents and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Agents unless and until the Company and the Agents have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Each sale of the Shares to the contrary hereinAgents shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager Agents. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Agents. The commitment of the Agents to purchase the Shares pursuant to any Terms Agreement shall not sell (1) Series A Preferred be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares at a price higher than to be purchased by the Series A Maximum Price. For the purposes hereofAgents pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Agents in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Series A Maximum Price” Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall mean: also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Agents.
(ad) through October 4, 2020, Under no circumstances shall the product aggregate amount of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) $25.00 plus any accrued and unpaid dividends per share to200,000,000, but excluding, the date of sale and (ii) 1.005; the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Agents in writing.
(e) If the Company or the Agents have reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(f) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale of, any Shares and, by notice to the Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for the offer or sale of any Shares, and the Agents shall not be obligated to offer or sell any Shares, (i) during any period in which the Company is, or could be deemed to be, in possession of material non-public information or (ii) except as provided in Section 3(g) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement.
(g) If the Company wishes to offer, sell or deliver Shares pursuant to this Agreement at any time during the period from and including an Announcement Date through and including the time that is 24 hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Agents (with a copy to counsel to the Agents) a Current Report on Form 8-K, which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections, similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agents, and obtain the consent of the Agents to the filing thereof (such consent not to be unreasonably withheld), (ii) provide the Agents with the officers’ certificate, accountants’ letter and opinions and letters of counsel called for by Sections 4(k), (l), (m) and (bn) on October 5hereof, 2020 if applicable, respectively, (iii) afford the Agents the opportunity to conduct a due diligence review in accordance with Section 4(p) hereof and thereafter(iv) file such Earnings 8-K with the Commission, $25.00 plus any accrued then the provisions of clause (ii) of Section 3(f) shall not be applicable for the period from and unpaid dividends per share toafter the time at which the foregoing conditions shall have been satisfied (or, but excludingif later, the date time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of salethe relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the Company and the Agents agree that (A) the delivery of any officers’ certificate, accountants’ letter and opinions and letters of counsel pursuant to this Section 3(g) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, accountants’ letters and legal opinions and letters as provided in Section 4 hereof, if applicable, and (B) this Section 3(g) shall in no way affect or limit the operation of the provisions of clause (i) of Section 3(f), which shall have independent application.
Appears in 1 contract
Samples: Equity Distribution Agreement (Orchid Island Capital, Inc.)
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, (I) the Company agrees to issue and sell through or to the Managerone or more Managers, each as sales agent and/or principal, as and when it provides instructions, in its discretion, to any Manager or Managers for the offer and sale of the Shares, and the applicable Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares in accordance with the terms and subject to the conditions set forth in the relevant Regular Placement Notice (as defined below), this Agreement and, if applicable, the relevant Terms Agreements; and (II) if the Company enters into a Confirmation with a Forward Purchaser in accordance with Section 1 hereof, the applicable Manager, as forward seller on behalf of such Forward Purchaser, agrees to use its commercially reasonable efforts to offer and sell the Forward Hedge Shares to be borrowed by such Forward Purchaser or its affiliate on the following termsterms and subject to the conditions set forth in the relevant Forward Placement Notice, this Agreement and the applicable Confirmation.
(i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company and Company, the applicable Manager and, if applicable, the relevant Forward Purchaser on any day that (AI) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (BII) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the applicable Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares on terms acceptable to such Manager and (CIII) the Company has satisfied its obligations under Section 6 hereof. The If the Company wishes to issue and sell through or to a Manager, as sales agent and/or principal, it will so designate in a notice delivered by electronic mail to the Manager applicable Manager, substantially in the form attached hereto as Schedule C C-1 (a “Regular Placement Notice”). If the Company wishes that a Manager, as forward seller, offer and sell Forward Hedge Shares it will so designate in a notice delivered by electronic mail to the applicable Manager and the applicable Forward Purchaser, substantially in the form attached hereto as Schedule C-2 (a “Forward Placement Notice”). Such Regular Placement Notice or Forward Placement Notice (a “Placement Notice”) shall specify: (1) any minimum price below which sales of Shares may not be effected, (2) in the case of a Forward Placement Notice, (A) the Forward Hedge Selling Period (as defined below), (B) the maximum aggregate gross sales price or the maximum number of Forward Hedge Shares to be sold by the applicable Manager over the Forward Hedge Selling Period specified in such notice (such maximum aggregate gross sales price or share number, the “Aggregate Maximum Forward Hedge Amount”), (C) the Forward Seller Commission (as defined below), (D) the Spread, (E) the Initial Stock Loan Rate, (F) the Maximum Stock Loan Rate, (G) the Trade Date, (H) the Maturity Date, (I) the Forward Price Reduction Dates and (J) the Forward Price Reduction Amounts (each as defined in each applicable Confirmation), and (3) the maximum amount of Shares to be sold by the applicable Manager daily as agreed to by the applicable Manager (in any event and, if applicable, the relevant Forward Purchaser; provided that such amount shall not be in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Shares authorized from time to time to be issued Maximum Amount; and sold under this Agreement orprovided, together with all sales of Shares under this Agreement and the Alternative Distribution Agreementsfurther, that, in an amount in excess the case of a Forward Placement Notice, (x) the sum of (1) the number of Confirmation Shares issued under all Confirmations that have settled as of the Maximum Number)contemplated date of delivery, any minimum price below which sales (2) the aggregate Capped Number (as defined in each applicable Confirmation) under all Confirmations outstanding as of Shares the contemplated date of delivery that have not settled and (3) the proposed Capped Number for the Confirmation related to such Forward Placement Notice shall not exceed (y) 19.99% of the number of shares of Common Stock outstanding as of the date of this Agreement. The Placement Notice may not be effected and also specify any other limitations specified mutually agreed to by the Company and mutually agreed by applicable Manager and, if applicable, the Managerrelevant Forward Purchaser. Subject to the terms and conditions of this Section 3(a), the applicable Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the applicable Manager. The applicable Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instruction. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for a specified period (a “Suspension Period”); provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) and 4(w) with respect to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.
(iii) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company Company, such Manager and, if applicable, such Forward Purchaser. The “Forward Hedge Selling Period” means the period of such number of consecutive trading days (as specified in the applicable Forward Placement Notice), beginning on the date specified in such Forward Placement Notice or, if such date is not a trading day, the next trading day following such date and ending on the Manager.
(iv) The compensation to last such trading day or such earlier date on which the applicable Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a). The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such salesforward seller, shall constitute the net proceeds to the Company from have completed the sale of such Forward Hedge Shares (in connection with the “Net Proceeds”).
(v) If acting as sales agent hereunderrelevant Confirmation; provided, the Manager shall provide written confirmation however, that if, prior to the Company scheduled end of any Forward Hedge Selling Period (which may be by electronic mailx) any event occurs that would permit the Forward Purchaser to designate a Scheduled Trading Day as soon as is reasonably practicable following the close of trading on the NYSE each day on which Shares are sold pursuant to this Section 3(a) setting forth (i) the number of Shares sold on such day, (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will occur on the second business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day on the NYSE following the date on which such sales are made an Early Valuation Date (each such date, a “Settlement Date”). On each Settlement Date, the Net Proceeds from the sale of such Shares shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the Company, or its transfer agent (if applicable), shall default upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of Sale, Settlement Date and Representation Date (each, as defined in Section 2(b)each applicable Confirmation) under, Section 3(a)(vi) and Section 4(o) hereof, respectively)pursuant to, the Company provisions of Section 2 of the applicable Confirmation or (y) a Bankruptcy Termination Event (as defined in each applicable Confirmation) occurs, then the Forward Hedge Selling Period shall, upon the applicable Manager, as forward seller, becoming aware of such occurrence, immediately terminate as of the first such occurrence; and provided, further, that any Forward Hedge Selling Period then in effect shall immediately terminate upon the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in termination of this Agreement. Any obligation of the The applicable Manager to use its commercially reasonable efforts to sell Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance may accept such Placement Notice by the Company and the Operating Partnership of their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified telephone or in Section 6 hereofwriting (including electronic mail).
(viii) Notwithstanding anything to the contrary herein, the Manager shall not sell (1) Series A Preferred Shares at a price higher than the Series A Maximum Price. For the purposes hereof, the “Series A Maximum Price” shall mean: (a) through October 4, 2020, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) 1.005; and (b) on October 5, 2020 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
Appears in 1 contract
Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject Subject to the terms and conditions herein set forthforth herein, the Company agrees to issue and sell through or to the Manager, Agent acting as sales agent and/or principaland the Agent agrees to use its commercially reasonable efforts to sell as sales agent for the Company, the Shares. The Agent hereby covenants and agrees not to make any sales of the Shares on behalf of the Company other than (A) by means of ordinary brokers’ transactions that qualify for delivery of a Prospectus to NASDAQ in accordance with Rule 153 under the 1933 Act (such transactions are hereinafter referred to as “At the Market Offerings”) and when it provides instructions, (B) such other sales of the Shares on behalf of the Company in its discretion, for capacity as agent of the Company as shall be agreed by the Company and the Agent. The Agent covenants and agrees that it shall not engage in a sale of Shares on the Company’s behalf that would constitute the sale of a “block” under Rule 10b-18(a)(5) under the SharesExchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act without the Company’s prior written consent. Subject to the previous sentence, the Company acknowledges and agrees that in the event a sale of Shares on behalf of the Company would constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or the Agent reasonably believes it may be deemed an “underwriter” under the 1933 Act in a transaction that is not an At the Market Offering and the Company consents to such sale, the Company will provide to the Agent, at the Agent’s request and upon reasonable advance notice to the Company, on or prior to the Settlement Date (as defined below) for such transaction, the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 hereof, each dated the Settlement Date, and such other documents and information as the Agent shall reasonably request. Solely with respect to such sales that would constitute a “block” or a “distribution,” the Agent shall use commercially reasonable efforts to assist the Company in obtaining performance of its obligations by each purchaser whose offer to purchase Shares has been solicited by the Agent and accepted by the Company. Each time that the Company wishes to issue and sell Shares hereunder (each, a “Placement”), it will notify the Agent by email notice (or other method mutually agreed to in writing by the parties) containing the parameters in accordance with which it desires Shares to be sold, which shall at a minimum include the number of Shares to be offered, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Schedule I. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule II (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Agent set forth on Schedule II, as such Schedule II may be amended from time to time. If the Agent wishes to accept such proposed terms included in the Placement Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Placement Notice, on the same Business Day on which such Placement Notice is delivered to the Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Agent set forth on Schedule II) accepting such terms (the “Agent Acceptance”) or setting forth the terms that the Agent is willing to accept. Where the terms provided in the Placement Notice are proposed to be modified as provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Agent until the Company delivers to the Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the “Acceptance”), which email or other communication shall be addressed to all of the individuals from the Company and the Agent set forth on Schedule II and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Agent, on the same Business Day. The Placement Notice shall be effective upon receipt by the Company of the Agent Acceptance or, if modified as provided above, upon receipt by the Agent of the Company Acceptance, as the case may be, unless and until (i) the entire amount of the Shares covered by the Acceptance have been sold, (ii) in accordance with the notice requirements set forth in Section 4(c), the Company suspends or terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iv) the Agreement has been terminated under the provisions of Section 9. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement unless and until the Company delivers a Placement Notice to the Agent and there occurs with respect thereto either (i) an Agent Acceptance or (ii) a Company Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the relevant Acceptance and herein. In the event of a conflict between the terms of this Agreement and the terms of an Acceptance, the terms of the Acceptance will control. Subject to the terms and conditions hereof, upon the existence of an Acceptance, the Agent shall use its commercially reasonable efforts to sell as sales agent Shares designated in the Acceptance up to the amount specified, and otherwise in accordance with the terms of such Acceptance. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling Shares and (B) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
(b) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Manager agrees Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, as sales agent for the Company, the any Shares on the following terms.
(i) The Shares are at a price lower than the minimum price therefor authorized from time to be sold on a daily basis time, or otherwise as shall be mutually agreed upon by the Company and the Manager on any day that (Aii) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares and (C) the Company has satisfied its obligations under Section 6 hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C (a “Placement Notice”) the maximum number of Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount number of Shares authorized from time to time to be issued and sold under this Agreement or, together with all sales of Shares under this Agreement and the Alternative Distribution AgreementsAgreement, in an amount in excess of the Maximum Number)each case, any minimum price below which sales of Shares may not be effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions of this Section 3(a), the Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market makerBoard, or directly to any customer or client of a duly authorized committee thereof, and as set forth in the Manager. The Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions.
(ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or above the price designated by the Company in any such instructionapplicable Acceptance. In addition, the Company or the Manager Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering telecopy or email to all of the individuals of the other party set forth on Schedule II, which confirmation will be promptly acknowledged by the receiving party) suspend or refuse to undertake any sale of Shares designated in such Acceptance for a specified period (a “Suspension Period”)any reason and at any time; provided, however, that (A) such Suspension Period shall apply equally to the Manager and each Alternative Manager and (B) such Suspension Period suspension or termination shall not affect or impair the parties’ respective obligations with respect to Shares sold hereunder prior to the giving of such notice. Each of the parties hereto agrees that no such notice and provided, further, that there shall be no obligations under Sections 4(o), 4(p), 4(q), 4(r), 4(s) effective against the other unless it originates from an individual named on Schedule II and 4(w) with respect is made to the delivery of certificates, opinions, or comfort letters to the Manager during a Suspension Period and that such obligations shall recommence on the termination individuals of the Suspension Periodother party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time.
(iiic) The Manager hereby covenants and agrees not to make any sales of Shares on behalf of the Company, pursuant to this Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales of Shares on behalf of the Company in its capacity as agent of the Company as shall be mutually agreed upon by the Company and the Manager.
(iv) The compensation to the Manager, as an agent of the Company, for sales of Shares shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of any Shares sold pursuant to this Section 3(a)Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on NASDAQ or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the Agent acts as sales agent shall be equal to 2% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company from the sale of for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(vd) If acting as sales agent hereunder, the Manager The Agent shall provide written confirmation to the Company (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE NASDAQ each day on in which Shares are sold pursuant to under this Section 3(a) Agreement setting forth (i) the number of Shares sold on such day, (ii) the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company, Company and (iii) the compensation payable by the Company to the Manager Agent with respect to such sales. For the avoidance of doubt, such written confirmation will be provided to the Company no later than the opening of trading on the immediately following trading day on NASDAQ.
(vie) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in Section 1 of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement and the Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s Board, or a duly authorized committee thereof, and notified to the Agent in writing as set forth in the applicable Placement Notice. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The Agent shall calculate and provide in writing to the Company, on a monthly basis, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
(f) Settlement for sales of Shares pursuant to this Section 3(a) 4 and made in accordance with the terms of the applicable Acceptance will occur on the second third business day (or such earlier day as is industry practice for regular-way trading and as mutually agreed by the Company and the Manager) that is also a trading day for NASDAQ (other than a day on the NYSE which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made made, unless another date shall be agreed to by the Company and the Agent (each such dateday, a “Settlement Date”). On each Settlement Date, the Net Proceeds from Shares sold through the sale of Agent for settlement on such Shares date shall be delivered to the Company in same day funds to an account designated by the Company in writing prior to such Settlement Date against receipt of the Shares sold. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s account, or Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account of the Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon against payments by the parties hereto, which Agent of the Net Proceeds from the sale of such Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable formsame day funds delivered to an account designated by the Company. If the Company, or its transfer agent (if applicable), Company shall default upon on its obligation to deliver the Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Manager Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company or its transfer agent and (Bii) pay the Manager Agent any commission to which it would otherwise be entitled absent such default. The Authorized Company Representatives shall be the contact persons for the Company for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 3(a)(vi).
(viig) At each Time of SaleApplicable Time, each Settlement Date and each Representation Date (each, as such term is defined in Section 2(b), Section 3(a)(vi6(n) and Section 4(o) hereof, respectivelyherein), the Company Company, the Adviser and the Operating Partnership Administrator shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any The obligation of the Manager Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of their respective its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof4 of this Agreement.
(viiih) Notwithstanding anything The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Common Stock or any other equity security of the contrary hereinCompany pursuant to this Agreement shall only be effected by or through only one of Agent or on any single given day, but in no event by more than one of them, and the Manager Company shall not in no event request that more than one of Agent or sell (1) Series A Preferred Shares at a price higher than shares of Common Stock on the Series A Maximum Price. For the purposes hereofsame day; provided, the “Series A Maximum Price” shall mean: (a) through October 4however, 2020, the product of that (i) $25.00 plus any accrued and unpaid dividends per share to, but excludingthe foregoing limitation shall not apply to sales solely to employees of the Company, the date Adviser, the Administrator or their respective affiliates, or to a trustee or other person acquiring such securities for the accounts of sale such persons and (ii) 1.005; such limitation shall not apply on any day during which no sales are made pursuant to this Agreement.
(i) Except as may be mutually agreed by the Company and the Agent the Company and the Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, (i) with respect to the Company’s quarterly filings on Form 10-Q, during any period commencing upon the 30th day following the end of each fiscal quarter and ending on the date on which the Company files with the Commission a Prospectus Supplement under Rule 497 relating to the Shares that includes updated financial information as of the end of the Company’s most recent quarterly period (the “10-Q Filing”) and (bii) with respect to the Company’s annual report filings on October 5Form 10-K, 2020 during any period commencing upon the 50th day following the end of the Company’s fiscal year and thereafterending on the date on which the Company files with the Commission a Prospectus Supplement under Rule 497 relating to the Shares that includes updated audited financial information as of the end of the Company’s most recent fiscal year (the “10-K Filing”) (each of a 10-Q Filing and/or a 10-K Filing shall also be referred to herein as a “Quarterly 497 Filing”). To the extent the Company releases its earnings for its most recent quarterly period or fiscal year, $25.00 plus any accrued as applicable (an “Earnings Release”) before it files with the Commission its quarterly report on Form 10-Q for such quarterly period or annual report on Form 10-K for such fiscal year, as applicable, then the Agent and unpaid dividends per share to, but excluding, the Company agree that no sales of Shares shall take place for the period beginning on the date of salethe Earnings Release and ending on the date of the applicable Quarterly 497 Filing. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Agent, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during any period in which the Company is in possession of material non-public information.
Appears in 1 contract
Samples: Equity Distribution Agreement (Prospect Capital Corp)
