Sale and Delivery of Shares. (a) 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 the Agent, acting as sales agent, and the Agent agrees to use its reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. i. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Agent daily as previously agreed to in writing or electronic transmission by the Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) 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 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) at the time of 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 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 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 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 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. iv. The Agent 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) (1) by 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 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 agreed by the Company and the Agent pursuant to a Terms Agreement. v. The compensation to the 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 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 for such Shares (the “Net Proceeds”). vi. The Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which 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) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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~~ through or to ~~time through~~ the ~~Agent~~Manager, ~~acting~~ as sales ~~agent~~agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the ~~Agent~~ Manager 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 to upon by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the ~~Agent~~ 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 ~~of this Agreement~~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 ~~amount~~ number of ~~the~~ Shares to be sold by the ~~Agent~~ Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the ~~currently effective~~ Registration Statement ~~less (ii) any amounts already~~ or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold ~~pursuant to~~ under this Agreement or, together with all sales of Shares under this Agreement and the Alternative ~~Equity~~ Distribution Agreements~~) and~~ , in an amount in excess of the Maximum Number), any minimum price ~~per Share at~~ below which ~~such~~ sales of Shares may not be ~~sold~~effected and any other limitations specified by the Company and mutually agreed by the Manager. 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~~ ), 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 ~~price~~ for ~~shares~~ 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~~’s Common Stock sold~~ , 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 ~~Agent under this Section 3(a) at the time of 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~~ in any such ~~Shares may be sold). ii~~instruction. ~~The Company acknowledges and agrees that (A) there can be no assurance that the Agent will be successful in selling the Shares~~In addition, ~~(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 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 Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for ~~any reason and at any time~~a specified period (a “Suspension Period”); provided, however, that (A) such ~~suspension or termination~~ 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~~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. ~~iv.~~ (iii) The ~~Agent~~ Manager 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 ~~ordinary brokers’ transactions between members of~~ At the 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 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 ~~Agent pursuant to a Terms Agreement~~Manager. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company, 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 ~~the~~ any 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 ~~for~~ from the sale of such Shares (the “Net Proceeds”). ~~vi. The Agent~~ (v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by ~~facsimile or~~ electronic mail) ~~to the Company promptly~~ as soon as is reasonably practicable following the close of trading on the NYSE each day in on which ~~the~~ Shares are sold ~~under~~ pursuant to this Section 3(a) setting forth (i) the number of ~~the~~ Shares sold on such day, ~~the aggregate gross sales proceeds and~~ (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of ~~the~~ Shares pursuant to this Section 3(a) will occur on the ~~third Business Day~~ 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 ~~day~~date, 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 ~~for~~ from the sale of such ~~Shares~~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 ~~Agent~~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 (“~~DTC~~DWAC”) ~~in return for payments in same day funds delivered to the account designated~~ or by such other means of delivery as may be mutually agreed upon by the ~~Company~~parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the ~~Company~~ Company, or its transfer agent (if applicable) ), shall default on upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ 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 ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If The Authorized Company Representatives shall be the ~~Agent breaches this Agreement by failing to deliver~~ contact persons for the ~~Net Proceeds~~ Company for all matters related to the ~~Company on any~~ 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 for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (each, as defined in Section ~~4(k~~2(b), Section 3(a)(vi) and ~~Filing Date (as defined in~~ Section ~~4(a)~~4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell ~~the~~ Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of ~~its~~ their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 ~~of this Agreement~~hereof. (bviii) If Notwithstanding anything to 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 termscontrary herein, the ~~Agent and~~ Manager shall not sell (1) Series A Preferred Shares at a price higher than the ~~Company will enter into a Terms Agreement, in substantially~~ Series A Maximum Price. For 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 Agreementpurposes hereof, the ~~terms of such Terms Agreement will control.~~ “Series A Maximum Price” shall mean: (ca) ~~Each sale of the Shares to the Agent shall be made in accordance with the terms of this Agreement and~~through October 4, ~~if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by~~2020, the ~~Agent. A Terms Agreement may also specify certain provisions relating to the reoffering~~ product of such Shares by the Agent. The commitment of the Agent 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares sold pursuant to this Agreement, the Alternative Equity Distribution Agreements and any Terms Agreement exceed (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the ~~Maximum Amount,~~ date of sale and (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 Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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 day1.005; provided, however, that (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) ~~such limitation shall not apply~~ on October 5, 2020 and thereafter, $25.00 plus 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 Sharesaccrued and unpaid dividends per share to, 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. (g) Notwithstanding any other provision of this Agreementbut excluding, 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 date 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 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 Announcementsale. (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) of Section 3(g), which shall have independent application.

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) 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 the ~~Agent~~Manager, acting as sales agent, and the ~~Agent~~ Manager agrees to use its 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 agreed to by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the ~~NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)~~NYSE, (B) the Company has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic ~~mail~~mail to the applicable individuals named on Schedule III hereto) to make such sales and (C) the ~~Company has~~ Transaction Entities have satisfied ~~its~~ their obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the ~~Agent~~ Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its ~~commercially~~ reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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 ~~Agent~~ Manager under this Section 3(a) on the NYSE at the time of 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~~ ) Each of the Transaction Entities acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Manager will be successful in selling the Shares, (B) the ~~Agent~~ Manager will incur no liability or obligation to the ~~Company~~ Transaction Entities or any other person or entity if it does not sell Shares for any reason other than a failure by the ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this ~~Agreement,~~ Agreement and (C) the ~~Agent~~ Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement~~, except as otherwise specifically agreed by the Agent and the Company~~. (iii. ) The Company shall not authorize the issuance and sale of, and the ~~Agent shall~~ Manager may 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~~ Manager in writing. The Company or the ~~Agent~~ Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic ~~mail~~mail to the applicable individuals named on Schedule III hereto), suspend the offering of the Shares for any reason and at any ~~time~~time (a “Suspension”); provided, however, that such ~~suspension or termination~~ Suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. (iv. ) The ~~Agent~~ Manager 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 ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 ~~under the Act~~ (such transactions are hereinafter referred to as “~~Continuous~~ At-the-Market Offerings”), . (2v) The compensation 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 the Manager for sales of the Shares on ~~behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Agent pursuant to a Terms Agreement. v. The compensation to the Agent for sales of the Shares~~ any given day with respect to which the ~~Agent~~ 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 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 Agreementon such day. The remaining proceeds, after further deduction for any documented transaction fees imposed on the ~~Agent~~ Manager by any governmental or ~~self-~~self regulatory organization in respect of such ~~sales~~sales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi. ) The ~~Agent~~ Manager shall provide written confirmation (which may be by ~~facsimile or~~ electronic ~~mail~~mail to the applicable individuals named on Schedule III hereto) to the Company ~~promptly~~ following the close of trading on the NYSE 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 to the ~~Company~~Transaction Entities, and the compensation payable by the ~~Company~~ Transaction Entities to the ~~Agent~~ Manager 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~~. (vii. ) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~Manager’s account at The Depository Trust Company (“DTC”) in return for ~~payments~~ a payment equal to the Net Proceeds for the sale of such Shares in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the ~~Company~~ Transaction Entities shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If the ~~Agent~~ Manager breaches this Agreement by failing to deliver the Net Proceeds ~~to the Company~~ on any Settlement Date for the Shares delivered by the Company, the ~~Agent~~ Manager will pay the Company interest based on the effective overnight federal funds rate on such unpaid ~~amount less any compensation due to the Agent~~amount. (viii. ) At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section ~~4(a)~~4(aa), if any, the ~~Company~~ Transaction Entities shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the ~~Company~~ Transaction Entities herein, to the performance by the ~~Company~~ Transaction Entities of ~~its~~ their obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) If Under no circumstances shall the ~~Company wishes to issue~~ number and ~~sell~~ aggregate gross price of the Shares sold pursuant to this Agreement and the Alternative Equity Distribution Agreements ~~but other than as~~ exceed any of (i) the aggregate amount 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares sold pursuant to this Agreement, the Alternative Equity Distribution Agreements and any Terms Agreement exceed (i) the Maximum Amount1, (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 and the Alternative Equity Distribution Agreements by the Board, or a duly authorized committee thereof, and notified to the ~~Agent~~ Manager in writing. (ec) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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 If any of the Alternative Agents sell Shares on the same day; provided, however, that (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant parties 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, it shall promptly notify the other ~~party~~ 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. (gd) Notwithstanding any other provision of this ~~Agreement,~~ 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~~Shares that would be sold, and the ~~Agent~~ Manager shall not be obligated to ~~offer or sell any Shares~~sell, (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 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 “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, 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 of (i) and (ii) above, such period shall be deemed to end 24 hours after the next subsequent Filing Time. (he) 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~~ Manager (with a copy to counsel to the ~~Agent~~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 ~~Agent~~Manager, and obtain the consent of the ~~Agent~~ Manager to the filing thereof (such consent not to be unreasonably withheld), (ii) provide the ~~Agent~~ Manager with the officers’ certificate, accountants’ letter and opinions and letters of counsel called for by Sections 4(k), (l4(l), (m4(m), 4(n), 4(o) and (n4(p) hereof; respectively, (iii) afford the ~~Agent~~ Manager the opportunity to conduct a due diligence review in accordance with Section ~~4(o~~4(q) hereof and (iv) file such Earnings 8-K with the Commission, then the provisions of ~~clause (iii) of~~ Section ~~3(g~~3(d) 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~~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(h~~3(e) shall in no way affect or limit the operation of the provisions of ~~clauses (i) and (ii) of~~ Section ~~3(g~~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) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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 the ~~Agent~~Manager, ~~acting~~ as sales agent, and the ~~Agent~~ Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. ~~i. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by~~ (i) Each time that the Company wishes to issue and ~~the Agent~~ 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, 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 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 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, such terms will not be binding on the Company or the Manager until the Company delivers to the Manager 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 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 Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum entire amount of the Shares ~~to be sold~~ covered by the Agent daily as previously agreed to in writing or electronic transmission by the Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less Placement Notice have been sold, (ii) ~~any amounts already issued and sold pursuant to~~ in accordance with Section 4(a)(ii) hereof, 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 ~~and~~ has been terminated under the ~~Alternative Equity Distribution Agreements) and the minimum price per Share at which such Shares may be sold~~provisions of Section 10. Subject to the terms and conditions ~~hereof~~hereof (including, without limitation, the ~~Agent~~ 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 to sell on a particular day~~efforts, 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) at the time of 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 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 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~~ regulations, to offer and sell ~~such~~ all of the Shares ~~as required under this Agreement~~designated in the Placement Notice; provided, ~~and (C)~~ however, that the ~~Agent~~ Manager shall ~~be under~~ have 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~~offer or sell any Shares, and the ~~Agent~~ Company acknowledges and agrees that the Manager shall ~~not~~ have no such obligation in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the 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 ~~obligated~~ deemed an “underwriter” under the 1933 Act in a transaction that is other than (A) by means of ordinary brokers’ transactions between members of the NASDAQ that qualify for delivery of a Prospectus to ~~use its reasonable efforts to sell~~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 ~~Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors~~ similar market venue (the transactions described in (A) and (B) are hereinafter referred to as “~~Board~~At the Market Offerings”). (ii) Notwithstanding the foregoing, ~~or a duly authorized committee thereof, and notified to~~ the ~~Agent in writing. The~~ Company or the ~~Agent~~ Manager may, upon notice to the other party ~~hereto~~ by telephone (confirmed promptly by electronic ~~mail~~mail from such party), suspend the offering of the Shares ~~for any reason and at any time~~pursuant to this Agreement or suspend or terminate a previously issued Placement Notice; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. ~~iv.~~ (iii) The ~~Agent~~ Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the ~~Company~~ Company, pursuant to this Section ~~3(a~~4(a), other than (A) ~~(1)~~ by means of ~~ordinary brokers’ transactions between members of~~ At the 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 Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the ~~Agent~~ Manager. (iv) The gross sales price of any Shares sold pursuant to ~~a Terms Agreement. v.~~ 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 ~~Agent~~ Manager, as an agent of the Company, 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~~ up to ~~exceed 2.0~~1.5% of the gross sales price of the Shares sold pursuant to this Section ~~3(a) and payable as described in the succeeding subsection (vi) below~~4(a). The foregoing rate of compensation shall not apply when the ~~Agent~~ Manager acts as principal, in which case the Company may sell Shares to the ~~Agent~~ Manager as principal at a price agreed upon at the relevant ~~Applicable Time~~ 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 ~~on the Agent~~ by any governmental or self-regulatory organization in ~~respect of~~ connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). ~~vi.~~ (v) The ~~Agent~~ Manager shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ as soon as practicable following the close of trading on the ~~NYSE~~ NASDAQ each day in which the Shares are sold under this Section ~~3(a~~4(a) setting forth the ~~number~~ aggregate amount of the Shares sold on such day, the aggregate ~~gross sales proceeds and the~~ Net Proceeds to the Company, and the aggregate compensation payable by the Company to the ~~Agent~~ Manager with respect to such sales. ~~Such compensation~~ If requested in the Placement Notice, the Manager shall ~~be set forth and invoiced in periodic statements from the Agent~~ 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, ~~with payment to be made by~~ at the time the Company ~~promptly after its receipt thereof~~is sent such information. ~~vii.~~ (vi) Settlement for sales of the Shares pursuant to this Section ~~3(a~~4(a) will occur on the ~~third Business~~ second 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 ~~day~~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 ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by ~~free delivery~~ electronically transferring the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the ~~Shares to the Agent~~Manager’s ~~account~~ 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 Company and the Manager, which in all cases shall be freely tradable, transferable, registered shares eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the ~~Company~~ Company, or its transfer agent (if applicable) ), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. ~~If the Agent breaches this Agreement by failing to deliver the Net Proceeds~~ The Authorized Company Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company ~~on any~~ for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi). (vii) At each Time of Sale, Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (as defined in Section ~~4(k)~~5(s) ~~and Filing Date (as defined in Section 4(a)~~hereof), the ~~Company~~ Company, the Adviser and the Administrator shall be deemed to have affirmed ~~each representation~~ their respective representations and ~~warranty~~ warranties contained in this ~~Agreement 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~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the ~~Company~~ Company, the Adviser and the Administrator herein, to the performance by the ~~Company~~ Company, the Adviser and the Administrator of ~~its~~ their obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (bi) 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~~4(a) of this Agreement ~~(each, a “Placement”)~~or as set forth in Section 4(a) of any Alternative Equity Distribution Agreement, it ~~will~~ may elect, in its sole discretion, to notify the ~~Agent~~ Manager of the proposed terms of such ~~Placement~~sale. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent and~~ Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 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 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) ~~Each~~ In the event the Company engages the Manager for a sale of ~~the~~ Shares ~~to the Agent shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for~~ that would constitute the sale of ~~such Shares to~~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 ~~purchase thereof by,~~ Manager will agree to compensation and deliverables that are customary for the ~~Agent. A Terms Agreement may also specify certain provisions relating~~ Manager with respect to ~~the reoffering of~~ such Shares by the Agent. The commitment of the Agent 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 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 (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 Agenttransactions. (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 ~~value~~ gross sales proceeds or the aggregate number of the Shares sold pursuant to this ~~Agreement, the~~ Agreement and any Alternative Equity Distribution ~~Agreements and any Terms~~ Agreement would exceed the lesser of (iA) the Maximum Amount, (iiB) the ~~number of shares of the Common Stock~~ amount available for ~~issuance~~ offer and sale under the currently effective Registration Statement or (~~iii~~C) the ~~number and aggregate~~ amount ~~of the Shares~~ authorized from time to time to be issued and sold under this Agreement and any Alternative Equity Distribution Agreement by the ~~Board~~Company’s board of directors, or a duly authorized committee thereof, and notified to the ~~Agent~~ 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. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on If 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~~ 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~~ parties and sales of the Shares under this Agreement and any ~~Terms~~ 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 (~~g) Notwithstanding any other provision of this Agreement~~which such request may be by electronic mail), the ~~Company~~ Manager shall ~~not offer, sell or deliver, or request the offer or sale of, any Shares and, by notice~~ promptly calculate and provide in writing to the ~~Agent given by telephone (confirmed promptly by telecopy or email)~~Company a report setting forth, ~~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 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 Timeweek, the ~~Company shall~~ average daily trading volume (ias defined in Rule 100 of Regulation M under the Exchange Act) 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) of Section 3(g), which shall have independent applicationCommon 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) 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 the ~~Agent~~Manager, acting as sales agent, and the ~~Agent~~ Manager 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 agreed to by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the ~~NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)~~NYSE, (B) the Company has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the ~~Agent~~ Manager (daily or otherwise) as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its commercially reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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~~ Shares sold by the ~~Agent~~ Manager under this Section 3(a) on the NYSE at the time of 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)~~Shares. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Manager will be successful in selling the Shares, (B) the ~~Agent~~ Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the ~~Agent~~ Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the ~~Agent~~ Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Manager and the Company. (iii. ) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ 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 the ~~Agent~~ Manager in writing. The Company or the ~~Agent~~ Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for 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 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. (iv~~. The Agent~~ ) 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~~ Company, pursuant to this Section 3(a), ~~other than~~ will be made by (A) ~~(1)~~ any method permitted by ~~means of ordinary brokers’ transactions between members of~~ law deemed to be an “at the ~~NYSE that qualify for delivery of a Prospectus~~ market” offering as defined in ~~accordance with~~ Rule ~~153~~ 415 under the ~~Act (such transactions are hereinafter referred to as “Continuous Offerings”)~~Act, ~~(2)~~ 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,~~ 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~~ by any other ~~sales~~ method permitted by law, including but not limited to privately negotiated transactions. (v) The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as agent, in connection with the sale of the Shares ~~on behalf of the Company in its capacity as agent of the Company as~~ shall be ~~agreed by the Company and the Agent pursuant~~ up to a Terms Agreement. v. The compensation to the 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 2.02.00% of the gross sales price of the Shares sold pursuant to this Section 3(a~~) and payable as described in the succeeding subsection (vi) below~~). The ~~foregoing rate~~ amount of any commission, discount or other compensation ~~shall not apply~~ to be paid by the Company to the Manager, when ~~the Agent acts~~ Manager is acting as principal, in ~~which case~~ connection with the ~~Company may sell~~ sale of the Shares to shall be as separately agreed among the ~~Agent as principal at a price agreed upon~~ parties hereto at the ~~relevant Applicable Time pursuant to a Terms Agreement~~time of any such sales. 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,~~ proceeds shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi. ) The ~~Agent~~ Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company ~~promptly~~ following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the ~~Agent~~ Manager 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~~. (vii. ) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to ~~the~~ an account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. (viii. ) At each Applicable Time, Settlement ~~Date,~~ Date and Representation Date (as defined in Section 4(k~~)) and Filing Date (as defined in Section 4(a~~)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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 ~~Agent~~ Manager and the Company will enter into a ~~Terms Agreement, in substantially the form of Annex I hereto,~~ separate terms agreement or underwriting or similar agreement setting forth the terms of such Placement. ~~The~~ A 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 Agent 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 Agent. A Terms Agreement agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Manager. The commitment of the ~~Agent~~ Manager to purchase the Shares pursuant to any ~~Terms Agreement~~ 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~~ terms agreement shall specify the number of the Shares to be purchased by the ~~Agent~~ 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 ~~Agent~~ 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~~ 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~~Manager. (dc) 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 ~~value~~ offering price of the Shares sold pursuant to this ~~Agreement,~~ Agreement would exceed the lesser of (i) together with all sales of Shares under this Agreement and each of the Alternative Equity Distribution ~~Agreements and any Terms Agreement exceed (i)~~ Agreements, the Maximum Amount, and (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 ~~Agent~~ Manager in writing~~. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof,~~ . Under no circumstances shall the Company ~~agrees that any~~ cause or request the offer ~~to sell Shares, any solicitation of an offer to buy Shares,~~ or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise sale of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the by the Board, or an 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 ~~Agreement~~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. (fd) If ~~either~~ any of the ~~Company or the Agent~~ 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 ~~party~~ 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. (ge) 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 any other provision of this Agreement, the Company agrees that no sales of Shares shall take place, and 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~~ Manager shall not be obligated to ~~offer or sell any Shares~~sell, ~~(i)~~ during any period in which the Company is, or could be deemed to be, in possession of material non-public information; provided that, or notwithstanding the provisions of this paragraph (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 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 Timeg), the Company agrees that no sales of Shares shall take place during the twenty (i20) ~~prepare and deliver~~ calendar days prior to ~~the Agent~~ an Earnings Release (~~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”~~defined below), 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) of Section 3(g), which shall have independent application.

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) 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 the ~~Agent~~Manager, acting as sales agent, and the ~~Agent~~ Manager 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 agreed to by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the ~~NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)~~NYSE, (B) the Company has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the ~~Agent~~ Manager (daily or otherwise) as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its commercially reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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~~ Shares sold by the ~~Agent~~ Manager under this Section 3(a) on the NYSE at the time of 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)~~Shares. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Manager will be successful in selling the Shares, (B) the ~~Agent~~ Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the ~~Agent~~ Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the ~~Agent~~ Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Manager and the Company. (iii. ) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ 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 the ~~Agent~~ Manager in writing. The Company or the ~~Agent~~ Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for 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 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. (iv~~. The Agent~~ ) 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~~ Company, pursuant to this Section 3(a), ~~other than~~ will be made by (A) ~~(1)~~ any method permitted by ~~means of ordinary brokers’ transactions between members of~~ law deemed to be an “at the ~~NYSE that qualify for delivery of a Prospectus~~ market” offering as defined in ~~accordance with~~ Rule ~~153~~ 415 under the ~~Act (such transactions are hereinafter referred to as “Continuous Offerings”)~~Act, ~~(2)~~ 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,~~ 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~~ by any other ~~sales~~ method permitted by law, including but not limited to privately negotiated transactions. (v) The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as agent, in connection with the sale of the Shares ~~on behalf of the Company in its capacity as agent of the Company as~~ shall be ~~agreed by the Company and the Agent pursuant~~ up to a Terms Agreement. v. The compensation to the 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 2.02.00% of the gross sales price of the Shares sold pursuant to this Section 3(a~~) and payable as described in the succeeding subsection (vi) below~~). The ~~foregoing rate~~ amount of any commission, discount or other compensation ~~shall not apply~~ to be paid by the Company to the Manager, when ~~the Agent acts~~ Manager is acting as principal, in ~~which case~~ connection with the ~~Company may sell~~ sale of the Shares to shall be as separately agreed among the ~~Agent as principal at a price agreed upon~~ parties hereto at the ~~relevant Applicable Time pursuant to a Terms Agreement~~time of any such sales. 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,~~ proceeds shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi. ) The ~~Agent~~ Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company ~~promptly~~ following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the ~~Agent~~ Manager 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~~. (vii. ) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business Day~~ second business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to ~~the~~ an account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. (viii. ) At each Applicable Time, Settlement ~~Date,~~ Date and Representation Date (as defined in Section 4(k~~)) and Filing Date (as defined in Section 4(a~~)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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 ~~Agent~~ Manager and the Company will enter into a ~~Terms Agreement, in substantially the form of Annex I hereto,~~ separate terms agreement or underwriting or similar agreement setting forth the terms of such Placement. ~~The~~ A 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 Agent 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 Agent. A Terms Agreement agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Manager. The commitment of the ~~Agent~~ Manager to purchase the Shares pursuant to any ~~Terms Agreement~~ 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~~ terms agreement shall specify the number of the Shares to be purchased by the ~~Agent~~ 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 ~~Agent~~ 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~~ 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~~Manager. (dc) 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 ~~value~~ offering price of the Shares sold pursuant to this ~~Agreement,~~ Agreement would exceed the lesser of (i) together with all sales of Shares under this Agreement and each of the Alternative Equity Distribution ~~Agreements and any Terms Agreement exceed (i)~~ Agreements, the Maximum Amount, and (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 ~~Agent~~ Manager in writing~~. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof,~~ . Under no circumstances shall the Company ~~agrees that any~~ cause or request the offer ~~to sell Shares, any solicitation of an offer to buy Shares,~~ or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise sale of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the by the Board, or an 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 ~~Agreement~~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. (fd) If ~~either~~ any of the ~~Company or the Agent~~ 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 ~~party~~ 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. (ge) 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 any other provision of this Agreement, the Company agrees that no sales of Shares shall take place, and 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~~ Manager shall not be obligated to ~~offer or sell any Shares~~sell, ~~(i)~~ during any period in which the Company is, or could be deemed to be, in possession of material non-public information; provided that, or notwithstanding the provisions of this paragraph (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 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 Timef), the Company agrees that no sales of Shares shall take place during the twenty (i20) ~~prepare and deliver~~ calendar days prior to ~~the Agent~~ an Earnings Release (~~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”~~defined below), 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) of Section 3(g), which shall have independent application.

Appears in 4 contracts

Samples: Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc)

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) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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 the ~~Agent~~Manager, ~~acting~~ as sales agent, and the ~~Agent~~ Manager 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 agreed to by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the NYSE (~~other than~~ a ~~day on which the NYSE is scheduled to close prior to its regular weekday closing time~~“Trading Day”), (B) the Company has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic ~~mail~~mail to any of the individuals listed as authorized representatives of the Company on Schedule C hereto (the “Authorized Company Representatives”)) to make such sales and (C) the Company has satisfied its obligations under Section 6 5 of this Agreement. The Company will designate the maximum ~~amount~~ number of ~~the~~ Shares to be sold by the ~~Agent~~ Manager daily or as ~~previously~~ otherwise agreed to ~~in writing or electronic transmission~~ by the ~~Agent (~~Manager and the Company and in any event not in excess of ~~(i)~~ the amount of Shares available for issuance under the ~~Prospectus and the~~ currently effective Registration Statement ~~less (ii) any amounts already~~ or in excess of the amount of Shares authorized from time to time to be issued and sold ~~pursuant to~~ under this Agreement ~~and~~ by the ~~Alternative Equity Distribution Agreements) and the minimum price per Share at which such Shares may be sold~~Company’s board of directors, or a duly authorized committee thereof. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its commercially reasonable efforts to offer and sell on ~~a particular day, consistent with its normal trading practices,~~ any day all of the Shares designated for the sale by the Company on such day~~. The gross sales price of~~ ; provided, however, that the ~~Shares sold under this Section 3(a)~~ Manager shall be have no obligation to offer or sell any Shares, and the market price for shares of the Company’s Common Stock sold by the Agent under this Section 3(a) at the time of 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 the Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may 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 an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act. (Aii) ~~there can~~ Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail from the Company) not to sell the Shares if such sales cannot be ~~no assurance that~~ effected at or above the ~~Agent will~~ price designated by the Company in any such instruction, which price shall not be ~~successful in selling~~ below the ~~Shares~~par value of the Common Stock. In addition, ~~(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 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 Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic ~~mail~~mail from such party), suspend the offering of the ~~Shares for any reason and at any time~~Shares; provided, however, that such suspension ~~or termination~~ shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. ~~iv.~~ (iii) The ~~Agent~~ Manager 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 ~~ordinary brokers’ transactions between members of~~ “at the ~~NYSE that qualify for delivery of a Prospectus~~ market” offerings as defined in ~~accordance with~~ Rule ~~153~~ 415 under the ~~Act (such transactions are hereinafter referred to as “Continuous Offerings”)~~Act, ~~(2)~~ 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, 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 agreed by the Company and the ~~Agent pursuant~~ Manager, including but not limited to ~~a Terms Agreement~~in privately negotiated transactions. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company, 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~~1.25% of the gross sales price of 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 documented transaction fees imposed on the ~~Agent~~ Manager by any governmental or self-regulatory organization in ~~respect of~~ connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). ~~vi.~~ (v) The ~~Agent~~ Manager shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ as soon as practicable following the close of trading on the NYSE each day in which the Shares are sold under this Section 3(a) ), but in any event no later than the opening of the immediately following Trading Day, setting forth the ~~number~~ aggregate amount of the Shares sold on such day, the aggregate ~~gross sales proceeds and the~~ Net Proceeds to the Company, and the aggregate compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third ~~Business~~ 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 ~~day~~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 ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the ~~Agent~~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 return for payments in same day funds delivered to the account designated by the Company. If the ~~Company~~ Company, or its transfer agent (if applicable) ), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. ~~If the Agent breaches this Agreement by failing to deliver the Net Proceeds~~ The Authorized Company Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company ~~on any~~ 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 for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (as defined ~~in Section 4(k)) and Filing Date (as defined in Section 4(a)~~below), the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement as if such representation and warranty were made as of such date~~Agreement, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the ~~continuing~~ accuracy of the representations and warranties of the Company ~~herein~~herein as of each Time of Sale, Settlement Date and Representation Date, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 5 of this Agreement. (bi) If the ~~Company~~ Company, at its discretion, 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~~ Manager on a principal basis (each, a “Placement”), it will notify the ~~Agent~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent and~~ Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Manager unless and until the Company and the ~~Agent~~ 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 any Terms Agreement, the terms of such Terms Agreement will control. (cii) ~~Each~~ In the event the Company engages the Manager for a sale of ~~the~~ Shares ~~to the Agent shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for~~ that would constitute the sale of ~~such Shares to~~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 ~~purchase thereof by,~~ Manager will agree to compensation that is customary for the ~~Agent. A Terms Agreement may also specify certain provisions relating~~ Manager with respect to ~~the reoffering of~~ such Shares by the Agent. The commitment of the Agent 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 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 (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 Agenttransactions. (dc) (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 ~~value~~ gross sales proceeds or the aggregate number of the Shares sold pursuant to this ~~Agreement, the~~ Agreement and any Alternative Equity Distribution ~~Agreements and any Terms~~ Agreement would exceed the lesser of (iA) the Maximum Amount, (iiB) the ~~number of shares of the Common Stock~~ amount available for ~~issuance~~ offer and sale under the currently effective Registration Statement or and (~~iii~~C) the ~~number and aggregate~~ amount ~~of the Shares~~ authorized from time to time to be issued and sold under this Agreement and any Alternative Equity Distribution Agreement by the ~~Board~~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 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 ~~Agent~~ Manager in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

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) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales ~~agent,~~ agent and the 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. i. 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 (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 agreed to by the Company and the 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~~ 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 ~~which the NYSE is scheduled to close~~ 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 ~~regular weekday closing time~~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”), ~~(B) the Company has instructed~~ it will notify the Agent by ~~telephone~~ email notice (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~electronic mail~~the parties) containing the parameters in accordance with which it desires Shares to ~~make~~ 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 (Cwhich 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 ~~Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum~~ entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 reasonable efforts~~ permitted to sell, any ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on NASDAQ or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. ~~The foregoing rate~~ In lieu of ~~compensation shall not apply when the Agent acts as principal, in which case~~ the Company ~~may sell Shares~~ paying all compensation payable to the Agent ~~as principal at a price agreed upon at~~ for the ~~relevant Applicable Time~~ sale of the Shares pursuant to ~~a Terms~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ NASDAQ each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNASDAQ. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then currently effective Registration ~~Statement~~ 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 Sales Agreements by the Board, or a duly authorized committee thereof, and notified to the Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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. (gf) ~~Notwithstanding~~ Settlement for sales of Shares pursuant to this Section 4 and made in accordance with the terms of the applicable Acceptance will occur on the second business day that is also a trading day for NASDAQ (other than a day on which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are 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 day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any ~~other provision of~~ Settlement Date pursuant to this Agreement, the Company shall ~~not offer~~(i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the Agent to use its commercially reasonable efforts to sell ~~or deliver~~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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 Sales 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 Company, but in no event by more than one of them, and the Company shall in no event request that more than one of Agent or the Other Agents sell shares of Common Stock on the same day. (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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer~~ sell, during: 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 ~~sell any Shares~~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 the 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, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

Appears in 3 contracts

Samples: Sales Contracts (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de)

Sale and Delivery of Shares. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions ~~and in reliance upon the representations and warranties~~ herein set forth, the Company agrees (1) to issue and sell ~~Shares from time~~ through or to ~~time through~~ the ~~Agent~~Manager, ~~acting~~ as sales ~~agent~~agent and/or principal, as and when it provides instructions, in its discretion, for the sale of Shares, and the ~~Agent~~ 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. (i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed to upon by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make ~~such~~ sales of Shares and (C) the Company has satisfied its ~~obligations~~ covenants and conditions under Section 4 and Section 6 ~~of this Agreement~~hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C the maximum amount of ~~the~~ Shares to be sold by the ~~Agent~~ Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the ~~currently effective~~ Registration Statement ~~less (ii) any amounts already~~ or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold ~~pursuant to~~ under this Agreement or, together with all sales of Shares under this Agreement and the Alternative ~~Equity~~ Distribution Agreements~~) and~~ , in an amount in excess of the Maximum Amount, or in excess of the number of Shares approved for listing on the NYSE), any minimum price ~~per Share at~~ 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 ~~may~~ (i) will be ~~sold~~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 ~~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~~ ), 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 ~~price for shares of the Company’s Common Stock sold by the Agent under this Section 3(a)~~ maker at market prices prevailing at the time of ~~sale~~ 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 ~~such Shares (but in no event shall such gross sales price be less than~~ the ~~minimum price per Share designated~~ representations and warranties of each of the Company and the Operating Partnership and the performance by the Company ~~at which such Shares may be sold~~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)~~. ii. The Company 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 or any other person or entity if it does not sell Shares for any reason other than a failure by the Agent to Manager shall use its commercially reasonable efforts consistent with its normal trading and sales ~~practices~~ practice to offer 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 sales agent all of the Shares ~~for any reason and at any time~~designated; 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. iv. The Agent hereby covenants~~ Company acknowledges and agrees ~~not~~ that neither the Manager nor the Forward Purchaser, as applicable, shall have any obligation to ~~make~~ borrow, offer or sell any ~~sales~~ Shares in the event that a borrowing, offer or sale of the Shares on behalf of the Company ~~pursuant~~ or the Forward Purchaser may 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 ~~this Section 3(a),~~ be an “underwriter” under the Act in a transaction that is other than ~~(A) (1)~~ by 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 individually as an “~~Continuous~~ At the Market Offering” and collectively as the “At the Market Offerings”). (ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (2confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or ~~through~~ 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 ~~market maker~~specified period (a “Suspension Period”); provided, however, that such Suspension Period shall not affect or impair the parties’ respective obligations with respect to Shares 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, provided further, that there shall be no obligations under Sections 4(n), 4(o), 4(p) and 4(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. (3iii) ~~directly~~ Each of the Manager and the Forward Purchaser, as applicable, hereby covenants and agrees not to make any sales of Shares on ~~or through any~~ behalf of the Company, pursuant to this Section 3(a), other ~~national securities exchange or facility thereof, a trading facility~~ than (A) by means of ~~a national securities association, an alternative trading system, an electronic communication network or any similar market venue~~ 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 ~~Agent~~ Manager. (iv) In connection with sales pursuant to ~~a Terms~~ Section 3(a)(1) of this Agreement~~. v. The~~ , the compensation to the ~~Agent~~ Manager, as an agent of the Company, 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 ~~the~~ any Shares sold pursuant to this Section 3(a). In connection with sales pursuant to Section 3(a)(2) ~~and~~ of this Agreement, the compensation payable ~~as described in~~ to the ~~succeeding subsection (vi) below. The foregoing rate~~ Manager for sales of ~~compensation shall not apply when~~ Shares with respect to which the ~~Agent~~ Manager acts as ~~principal,~~ forward seller shall be reflected in ~~which case~~ a reduction of an amount not to exceed 2.0% of the ~~Company may sell Shares to the Agent~~ Initial Forward Price (as ~~principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement~~such term is defined in each applicable Confirmation). 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 ~~for~~ or the Forward Purchaser, as applicable, from the sale of such Shares (the “Net Proceeds”). ~~vi. The Agent~~ (v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by ~~facsimile or~~ electronic mail) ~~to the Company promptly~~ as soon as is reasonably practicable following the close of trading on the NYSE each day in on which ~~the~~ Shares are sold ~~under~~ pursuant to 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 or the Forward Purchaser, as applicable, and (iii) the aggregate compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of ~~the~~ Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ business day 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 ~~day~~date, a “Direct Settlement Date”), 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”)~~. 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 ~~for~~ from the sale of such ~~Shares~~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) or the Forward Purchaser, as applicable, to the ~~Agent~~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 (“~~DTC~~DWAC”) ~~in return for payments in same day funds delivered to the account designated~~ or by such other means of delivery as may be mutually agreed upon by the ~~Company~~parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the ~~Company~~ Company, or its transfer agent (if applicable) ), shall default on 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 ~~Agent~~ 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 ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If The Authorized Company Representatives shall be the ~~Agent breaches this Agreement by failing to deliver~~ contact persons for the ~~Net Proceeds~~ Company for all matters related to the ~~Company on any~~ 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 for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (as defined in Section ~~4(k)~~4(n) ~~and Filing Date (as defined in Section 4(a)~~hereof), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices 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 of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 ~~of this Agreement~~hereof. (b) If the Company wishes to borrow or 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~~ hereof (each, a “~~Placement~~Transaction”), it will notify the ~~Agent~~ Manager and the Forward Purchaser, as applicable, of the proposed terms of such ~~Placement~~Transaction. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent~~ Company and the ~~Company~~ Manager will enter into a Terms ~~Agreement, in substantially~~ Agreement or the ~~form of Annex I hereto,~~ Company and the Forward Purchaser will enter into a Confirmation 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 AgreementTransaction. In the event of a conflict between the terms of this Agreement and the terms of a any Terms ~~Agreement~~Agreement or Confirmation, as applicable, the terms of such Terms Agreement or Confirmation, as applicable, will control. (c) Each sale of the Shares to the Agent 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 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 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 (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 Agent. (di) Under no circumstances shall the aggregate ~~value of the~~ gross sales proceeds from Shares sold pursuant to this ~~Agreement,~~ Agreement together with the Common Stock sold pursuant to the Alternative ~~Equity~~ Distribution Agreements, including any separate Terms Agreements or similar agreement covering principal transactions described herein and ~~any Terms Agreement~~ in the Alternative Distribution Agreements, exceed the lesser of (iA) the Maximum ~~Amount,~~ Amount and (B) the amount available for offer and sale under the Prospectus and the Registration Statement. (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 Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that If any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either the Company or the Agent 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~~ 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. (gd) 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 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)~~Manager, shall cancel any instructions for the offer or sale of any Shares, and the ~~Agent~~ Manager shall not be obligated to offer or sell any Shares, during (i) ~~during~~ any period in which the Company is, or could be deemed to be, in possession of material non-public ~~information,~~ information or (ii) ~~except as provided in Section 3(h) below, at any time~~ during the ~~period commencing on the seventh Business Day~~ fourteen (14) calendar days prior to any public announcement or release disclosing 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~~ Company’s results of operations ~~(each, an “Earnings Announcement”)~~ or financial condition for a completed quarterly or annual fiscal period 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~~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 (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement unless a Terms Agreement, in substantially the form attached hereto as Exhibit A, shall have been executed by the Company, the Operating Partnership and the Manager. (g) 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 the Manager or an Alternative Manager on any single given day, but in no event by the Manager and 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) If As set out in Paragraph 7(f)(i) under the ~~Company wishes~~ Confirmation and notwithstanding anything herein to ~~offer~~the contrary, ~~sell or deliver Shares at any time during~~ in the ~~period from and including an Announcement Date through and including the time~~ event that ~~is 24 hours after the corresponding Filing Time, the Company shall~~ either (i) ~~prepare~~ the Forward Purchaser is unable to borrow 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), Shares for sale under this Agreement or (ii) ~~provide~~ in the ~~Agent with~~ commercially reasonable judgment of the ~~officers’ certificate~~Forward Purchaser, ~~accountants’ letter and opinions and letters of counsel called for by Sections 4(k), (l), (m) and (n) hereof; respectively, (iii) afford~~ it is either impracticable to do so or the ~~Agent the opportunity~~ Forward Purchaser would incur a stock loan cost that is equal to ~~conduct a due diligence review in accordance with Section 4(o) hereof and (iv) file such Earnings 8-K with the Commission~~or greater than 200 basis points per annum to do so, then the ~~provisions~~ Manager shall be required to sell on behalf of ~~clause (iii)~~ the Forward Purchaser only the aggregate number 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~~ Shares that the ~~relevant Earnings Announcement was first publicly released) through~~ Forward Purchaser is able to, and ~~including the time~~ that it is ~~24 hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K~~practicable to, 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) of Section 3(g), which shall have independent applicationso 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) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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~~ through or to ~~time through~~ the ~~Agent~~Manager, ~~acting~~ as sales ~~agent~~agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the ~~Agent~~ Manager 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 to upon by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the ~~Agent~~ 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 ~~of this Agreement~~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 ~~amount~~ number of ~~the~~ Shares to be sold by the ~~Agent~~ Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the ~~currently effective~~ Registration Statement ~~less (ii) any amounts already~~ or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold ~~pursuant to~~ under this Agreement or, together with all sales of Shares under this Agreement and the Alternative ~~Equity~~ Distribution Agreements~~) and~~ , in an amount in excess of the Maximum Number), any minimum price ~~per Share at~~ below which ~~such~~ sales of Shares may not be ~~sold~~effected and any other limitations specified by the Company and mutually agreed by the Manager. 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~~ ), 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 ~~price~~ for ~~shares~~ 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~~’s Common Stock sold~~ , 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 ~~Agent under this Section 3(a) at the time of 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~~ in any such ~~Shares may be sold). ii~~instruction. ~~The Company acknowledges and agrees that (A) there can be no assurance that the Agent will be successful in selling the Shares~~In addition, ~~(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 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 Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for ~~any reason and at any time~~a specified period (a “Suspension Period”); provided, however, that (A) such ~~suspension or termination~~ 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~~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. ~~iv.~~ (iii) The ~~Agent~~ Manager 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 ~~ordinary brokers’ transactions between members of~~ At the 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 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 ~~Agent pursuant to a Terms Agreement~~Manager. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company, 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 ~~the~~ any 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 ~~for~~ from the sale of such Shares (the “Net Proceeds”). ~~vi. The Agent~~ (v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by ~~facsimile or~~ electronic mail) ~~to the Company promptly~~ as soon as is reasonably practicable following the close of trading on the NYSE each day in on which ~~the~~ Shares are sold ~~under~~ pursuant to this Section 3(a) setting forth (i) the number of ~~the~~ Shares sold on such day, ~~the aggregate gross sales proceeds and~~ (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of ~~the~~ Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ 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 ~~day~~date, 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 ~~for~~ from the sale of such ~~Shares~~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 ~~Agent~~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 (“~~DTC~~DWAC”) ~~in return for payments in same day funds delivered to the account designated~~ or by such other means of delivery as may be mutually agreed upon by the ~~Company~~parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the ~~Company~~ Company, or its transfer agent (if applicable) ), shall default on upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ 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 ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If The Authorized Company Representatives shall be the ~~Agent breaches this Agreement by failing to deliver~~ contact persons for the ~~Net Proceeds~~ Company for all matters related to the ~~Company on any~~ 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 for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (each, as defined in Section ~~4(k~~2(b), Section 3(a)(vi) and ~~Filing Date (as defined in~~ Section ~~4(a)~~4(o) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell ~~the~~ Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of ~~its~~ their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 ~~of this Agreement~~hereof. (bviii) If Notwithstanding anything to 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 termscontrary herein, the ~~Agent and~~ Manager shall not sell (1) Series A Preferred Shares at a price higher than the ~~Company will enter into a Terms Agreement, in substantially~~ Series A Maximum Price. For 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 Agreementpurposes hereof, the ~~terms of such Terms Agreement will control.~~ “Series A Maximum Price” shall mean: (ca) ~~Each sale of the Shares to the Agent shall be made in accordance with the terms of this Agreement and~~through October 4, ~~if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by~~2020, the ~~Agent. A Terms Agreement may also specify certain provisions relating to the reoffering~~ product of such Shares by the Agent. The commitment of the Agent 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares sold pursuant to this Agreement, the Alternative Equity Distribution Agreements and any Terms Agreement exceed (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the ~~Maximum Amount,~~ date of sale and (ii) the ~~number~~ sum of ~~shares of the Common Stock available for issuance under the currently effective Registration Statement or~~ (~~iii~~A) 1.0 and (B) (x) the number ~~and aggregate amount~~ of complete years until October 4, 2021 remaining at the ~~Shares authorized from time to time to be issued and sold under this Agreement~~ date of sale multiplied by ~~the Board, or a duly authorized committee thereof, and notified to the Agent in writing.~~ (ey) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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 day0.0050; provided, however, that (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) ~~such limitation shall not apply~~ on October 4, 2020 and thereafter, $25.00 plus 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 Sharesaccrued and unpaid dividends per share to, 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. (g) Notwithstanding any other provision of this Agreementbut excluding, 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 date 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 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 Announcementsale. (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) of Section 3(g), which shall have independent application.

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) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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 the ~~Agent~~Manager, ~~acting~~ as sales agent, and the ~~Agent~~ Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. ~~i. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by~~ (i) Each time that the Company wishes to issue and ~~the Agent~~ 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”), 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”). 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, unless and until (i) the Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum entire amount of the Shares ~~to be sold~~ covered by the Agent daily as previously agreed to in writing or electronic transmission by the Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less Placement Notice have been sold, (ii) ~~any amounts already issued and sold pursuant to~~ in accordance with Section 3(a)(ii) hereof, 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 ~~and~~ has been terminated under the ~~Alternative Equity Distribution Agreements) and the minimum price per Share at which such Shares may be sold~~provisions of Section 9. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its commercially reasonable efforts to offer and sell ~~on a particular day, consistent with its normal trading practices,~~ all of the Shares designated ~~for~~ in the ~~sale by~~ Placement Notice; provided, however, that the ~~Company on such day. The gross sales price of~~ Manager shall have no obligation to offer or sell any Shares, and 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) at the time of 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 the Manager shall have no such obligation in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the 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 an “underwriter” under the 1933 Act in a transaction that is other than (A) ~~there can be no assurance~~ by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the ~~Agent will be successful~~ NYSE in ~~selling~~ accordance with Rule 153 under the ~~Shares,~~ 1933 Act or (B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the ~~Agent will incur no liability or obligation~~ transactions described in (A) and (B) are hereinafter referred to as “At the Market Offerings”). (ii) Notwithstanding the foregoing, 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 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 Manager may, upon notice to the other party ~~hereto~~ by telephone (confirmed promptly by electronic ~~mail~~mail from such party), suspend the offering of the Shares ~~for any reason and at any time~~pursuant to this Agreement or suspend or terminate a previously issued Placement Notice; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. ~~iv.~~ (iii) The ~~Agent~~ Manager 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 ~~ordinary brokers’ transactions between members of~~ At the 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 Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the ~~Agent pursuant to a Terms Agreement~~Manager. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company, 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~~ up to ~~exceed 2.0~~1.0% of the gross sales price of 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~~ Manager acts as principal, in which case the Company may sell Shares to the ~~Agent~~ Manager as principal at a price agreed upon at the relevant ~~Applicable Time~~ 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~~ connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). ~~vi.~~ (v) The ~~Agent~~ Manager shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ as soon as practicable following the close of trading on the NYSE each day in which the Shares are sold under this Section 3(a) setting forth the ~~number~~ aggregate amount of the Shares sold on such day, the aggregate ~~gross sales proceeds and the~~ Net Proceeds to the Company, and the aggregate compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third ~~Business~~ 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 ~~day~~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 ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by ~~free delivery~~ electronically transferring the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the ~~Shares to the Agent~~Manager’s ~~account~~ 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 Company and the Manager, which in all cases shall be freely tradable, transferable, registered shares eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the ~~Company~~ Company, or its transfer agent (if applicable) ), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. ~~If the Agent breaches this Agreement by failing to deliver the Net Proceeds~~ The Authorized Company Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company ~~on any~~ 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 for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (as defined in Section ~~4(k)~~4(q) ~~and Filing Date (as defined in Section 4(a)~~hereof), the Company shall be deemed to have affirmed ~~each representation~~ its representations and ~~warranty~~ warranties contained in this ~~Agreement 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~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the ~~Company herein~~Company, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 5 of this Agreement. (bi) 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”)~~or as set forth in Section 3(a) of any Alternative Equity Distribution Agreement, it ~~will~~ may elect, in its sole discretion, to notify the ~~Agent~~ Manager of the proposed terms of such ~~Placement~~sale. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent and~~ Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 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 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 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 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 promptly calculate and provide in writing to the Company a report setting forth, for the prior week, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock. (e) Each sale of the Shares to or through the ~~Agent~~ Manager or any Alternative Manager, as applicable, shall be made in accordance with the terms of this Agreement ~~and~~or, if applicable, a Terms Agreement, ~~which will provide for~~ or the ~~sale of such Shares to~~respective Alternative Equity Distribution Agreement or, ~~and the purchase thereof by~~if applicable, ~~the Agent. A~~ an Alternative Terms ~~Agreement may also specify certain provisions relating to the reoffering of such Shares by the Agent~~Agreement, as applicable. The commitment of the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~ 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 (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~~ 5 hereof and any other information or documents required by the ~~Agent~~Manager. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

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) 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 the ~~Agent~~Manager, acting as sales agent, and the ~~Agent~~ Manager 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 agreed to by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the ~~NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)~~NYSE, (B) the Company has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the ~~Agent~~ Manager (daily or otherwise) as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its commercially reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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~~ Shares sold by the ~~Agent~~ Manager under this Section 3(a) on the NYSE at the time of 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)~~Shares. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Manager will be successful in selling the Shares, (B) the ~~Agent~~ Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the ~~Agent~~ Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the ~~Agent~~ Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Manager and the Company. (iii. ) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ 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 the ~~Agent~~ Manager in writing. The Company or the ~~Agent~~ Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for 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 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. (iv~~. The Agent~~ ) 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~~ Company, pursuant to this Section 3(a), ~~other than~~ will be made by (A) ~~(1)~~ any method permitted by ~~means of ordinary brokers’ transactions between members of~~ law deemed to be an “at the ~~NYSE that qualify for delivery of a Prospectus~~ market” offering as defined in ~~accordance with~~ Rule ~~153~~ 415 under the ~~Act (such transactions are hereinafter referred to as “Continuous Offerings”)~~Act, ~~(2)~~ 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,~~ 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~~ by any other ~~sales~~ method permitted by law, including but not limited to privately negotiated transactions. (v) The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as agent, in connection with the sale of the Shares ~~on behalf of the Company in its capacity as agent of the Company as~~ shall be ~~agreed by the Company and the Agent pursuant~~ up to a Terms Agreement. v. The compensation to the 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 2.02.00% of the gross sales price of the Shares sold pursuant to this Section 3(a~~) and payable as described in the succeeding subsection (vi) below~~). The ~~foregoing rate~~ amount of any commission, discount or other compensation ~~shall not apply~~ to be paid by the Company to the Manager, when ~~the Agent acts~~ Manager is acting as principal, in ~~which case~~ connection with the ~~Company may sell~~ sale of the Shares to shall be as separately agreed among the ~~Agent as principal at a price agreed upon~~ parties hereto at the ~~relevant Applicable Time pursuant to a Terms Agreement~~time of any such sales. 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,~~ proceeds shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi. ) The ~~Agent~~ Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company ~~promptly~~ following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the ~~Agent~~ Manager 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~~. (vii. ) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to ~~the~~ an account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. (viii. ) At each Applicable Time, Settlement ~~Date,~~ Date and Representation Date (as defined in Section 4(k~~)) and Filing Date (as defined in Section 4(a~~)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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 ~~Agent~~ Manager and the Company will enter into a ~~Terms Agreement, in substantially the form of Annex I hereto,~~ separate terms agreement or underwriting or similar agreement setting forth the terms of such Placement. ~~The~~ A 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 Agent 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 Agent. A Terms Agreement agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Manager. The commitment of the ~~Agent~~ Manager to purchase the Shares pursuant to any ~~Terms Agreement~~ 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~~ terms agreement shall specify the number of the Shares to be purchased by the ~~Agent~~ 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 ~~Agent~~ 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~~ 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~~Manager. (dc) 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 ~~value~~ offering price of the Shares sold pursuant to this ~~Agreement,~~ Agreement would exceed the lesser of (i) together with all sales of Shares under this Agreement and each of the Alternative Equity Distribution ~~Agreements and any Terms Agreement exceed (i)~~ Agreement, the Maximum Amount, and (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 ~~Agent~~ Manager in writing~~. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof,~~ . Under no circumstances shall the Company ~~agrees that any~~ cause or request the offer ~~to sell Shares, any solicitation of an offer to buy Shares,~~ or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise sale of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the by the Board, or an 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 ~~Agreement~~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. (fd) If ~~either~~ any of the ~~Company or the Agent~~ 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 ~~party~~ 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. (ge) 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 any other provision of this Agreement, the Company agrees that no sales of Shares shall take place, and 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~~ Manager shall not be obligated to ~~offer or sell any Shares~~sell, ~~(i)~~ during any period in which the Company is, or could be deemed to be, in possession of material non-public information; provided that, or notwithstanding the provisions of this paragraph (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 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 Timeg), the Company agrees that no sales of Shares shall take place during the twenty (i20) ~~prepare and deliver~~ calendar days prior to ~~the Agent~~ an Earnings Release (~~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”~~defined below), 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) of Section 3(g), which shall have independent application.

Appears in 3 contracts

Samples: Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc)

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) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales ~~agent,~~ agent and the 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. i. 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 (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 agreed to by the Company and the 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~~ 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 ~~which the NYSE is scheduled to close~~ 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 ~~regular weekday closing time~~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”), ~~(B) the Company has instructed~~ it will notify the Agent by ~~telephone~~ email notice (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~electronic mail~~the parties) containing the parameters in accordance with which it desires Shares to ~~make~~ 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 (Cwhich 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 ~~Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum~~ entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 reasonable efforts~~ permitted to sell, any ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on Nasdaq or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. ~~The foregoing rate~~ In lieu of ~~compensation shall not apply when the Agent acts as principal, in which case~~ the Company ~~may sell Shares~~ paying all compensation payable to the Agent ~~as principal at a price agreed upon at~~ for the ~~relevant Applicable Time~~ sale of the Shares pursuant to ~~a Terms~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ Nasdaq each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNasdaq. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then currently effective Registration ~~Statement~~ 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 Sales Agreements by the Board, or a duly authorized committee thereof, and notified to the Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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. (gf) ~~Notwithstanding~~ Settlement for sales of Shares pursuant to this Section 4 and made in accordance with the terms of the applicable Acceptance will occur on the second business day that is also a trading day for Nasdaq (other than a day on which Nasdaq is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are 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 day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any ~~other provision of~~ Settlement Date pursuant to this Agreement, the Company shall ~~not offer~~(i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the Agent to use its commercially reasonable efforts to sell ~~or deliver~~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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 Sales 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 Company, but in no event by more than one of them, and the Company shall in no event request that more than one of Agent or the Other Agents sell shares of Common Stock on the same day. (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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer~~ sell, during: 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 ~~sell~~ 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 the Earnings Release and ending on the date of the 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~~Shares that would be sold, ~~(i)~~ and the Agent shall not be obligated to sell, during any period in which the Company ~~is, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

Appears in 3 contracts

Samples: Sales Contracts (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de)

Sale and Delivery of Shares. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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~~ through or to ~~time through~~ the ~~Agent~~Manager, ~~acting~~ as sales ~~agent~~agent and/or principal, as and when it provides instructions, in its discretion, for the sale of Shares, and the ~~Agent~~ Manager 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 to upon by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the ~~Agent~~ 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 ~~of this Agreement~~hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C the maximum amount of ~~the~~ Shares to be sold by the ~~Agent~~ Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the ~~currently effective~~ Registration Statement ~~less (ii) any amounts already~~ or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold ~~pursuant to~~ under this Agreement or, together with all sales of Shares under this Agreement and the Alternative ~~Equity~~ Distribution Agreements~~) and~~ , in an amount in excess of the Maximum Amount), any minimum price ~~per Share at~~ below which ~~such~~ sales of Shares may not be ~~sold~~effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions ~~hereof~~of this Section 3(a), the ~~Agent~~ 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 time of sale, at prices related to prevailing market prices or at negotiated prices. Subject to the terms and conditions of this Section 3(a), the Manager shall use its commercially reasonable efforts to offer and sell ~~on a particular day, consistent with its normal trading practices,~~ as sales agent 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) at the time of 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 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 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 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 any reason and at any timedesignated; provided, however, that ~~such suspension~~ the Manager shall have no obligation to offer or ~~termination shall not affect or impair~~ sell any Shares, and the ~~parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. iv. The Agent hereby covenants~~ Company acknowledges and agrees ~~not to make any sales~~ that the Manager shall have no such obligation, in the event that an offer or sale of the Shares on behalf of the Company ~~pursuant~~ may 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 ~~this Section 3(a),~~ be an “underwriter” under the Act in a transaction that is other than ~~(A) (1)~~ by 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 as “~~Continuous~~ At the Market Offerings”). (ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (2confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or ~~through~~ 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 ~~market maker~~specified period (a “Suspension Period”); provided, however, that 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) and 4(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. (3iii) ~~directly~~ The Manager hereby covenants and agrees not to make any sales of Shares on ~~or through any~~ behalf of the Company, pursuant to this Section 3(a), other ~~national securities exchange or facility thereof, a trading facility~~ than (A) by means of ~~a national securities association, an alternative trading system, an electronic communication network or any similar market venue~~ 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 ~~Agent pursuant to a Terms Agreement~~Manager. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company, 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 ~~the~~ any 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 ~~for~~ from the sale of such Shares (the “Net Proceeds”). ~~vi. The Agent~~ (v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by ~~facsimile or~~ electronic mail) ~~to the Company promptly~~ as soon as is reasonably practicable following the close of trading on the NYSE each day in on which ~~the~~ Shares are sold ~~under~~ pursuant to this Section 3(a) setting forth (i) the number of ~~the~~ Shares sold on such day, ~~the aggregate gross sales proceeds and~~ (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of ~~the~~ Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ business day that is also a trading day on the NYSE following the date on which such sales are made (each such ~~day~~date, 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 ~~for~~ from the sale of such ~~Shares~~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 ~~Agent~~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 (“~~DTC~~DWAC”) ~~in return for payments in same day funds delivered to the account designated~~ or by such other means of delivery as may be mutually agreed upon by the ~~Company~~parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the ~~Company~~ Company, or its transfer agent (if applicable) ), shall default on upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ 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 ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If The Authorized Company Representatives shall be the ~~Agent breaches this Agreement by failing to deliver~~ contact persons for the ~~Net Proceeds~~ Company for all matters related to the ~~Company on any~~ 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 for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (as defined in Section ~~4(k)~~4(n) ~~and Filing Date (as defined in Section 4(a)~~hereof), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell ~~the~~ Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 ~~of this Agreement~~hereof. (b) 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~~ hereof (each, a “Placement”), it will notify the ~~Agent~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent~~ Company, the Operating Partnership and the ~~Company~~ Manager will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 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 any Terms Agreement, the terms of such Terms Agreement will control. (c) Each sale of the Shares to the Agent 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 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 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 (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 Agent. (di) Under no circumstances shall the aggregate ~~value~~ gross sales proceeds of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the lesser of (iA) $50,000,000 and (B) the ~~Maximum Amount, (ii) the number of shares of the Common Stock~~ amount available for ~~issuance~~ offer and sale under the ~~currently effective~~ Prospectus and the Registration ~~Statement or (iii)~~ Statement, nor shall the ~~number and~~ aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized ~~from time to time~~ to be ~~issued and~~ sold under this Agreement by the ~~Board~~Company’s Board of Directors, or a duly authorized committee thereof, and notified to the ~~Agent~~ Manager in writing~~. (e) Except pursuant to a reoffer of~~ . Further, under no circumstances shall the aggregate gross sales proceeds from Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made sold pursuant to this Agreement together with the Shares sold pursuant to the Alternative Distribution Agreements, including any separate Terms Agreement or an similar agreement covering principal transactions described herein and in the Alternative ~~Equity~~ Distribution ~~Agreement~~Agreements, exceed the Maximum Amount. (fii) If either ~~the Company or the Agent~~ 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~~ 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. (gd) 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 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)~~Manager, shall cancel any instructions for the offer or sale of any Shares, and the ~~Agent~~ Manager shall not be obligated to offer or sell any Shares, during (i) ~~during~~ any period in which the Company is, or could be deemed to be, in possession of material non-public ~~information,~~ information or (ii) ~~except as provided in Section 3(h) below, at any time~~ during the ~~period commencing on the seventh Business Day~~ fourteen (14) calendar days prior to any public announcement or release disclosing 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~~ Company’s results of operations ~~(each, an “Earnings Announcement”)~~ or financial condition for a completed quarterly or annual fiscal period 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~~announcement or release. (hf) ~~If the~~ The Company ~~wishes to offer, sell or deliver Shares at any time during the period from~~ acknowledges and ~~including an Announcement Date through and including the time~~ agrees that ~~is 24 hours after the corresponding Filing Time, the Company shall~~ (i) ~~prepare and deliver~~ 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 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 (Company or any other person or entity if it does not sell Shares for any reason other than ~~any earnings projections~~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, ~~similar forward-looking data~~ and ~~officers’ quotations~~(iii) ~~(each, an “Earnings 8-K”)~~the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement unless a Terms Agreement, in form and substance ~~reasonably~~ mutually satisfactory to the ~~Agent~~Company, the Operating Partnership and ~~obtain~~ the ~~consent of the Agent to the filing thereof (such consent not to be unreasonably withheld)~~Manager, (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~~executed by the Company, the ~~time~~ Operating Partnership and the Manager. (g) The Company agrees that ~~is 24 hours after~~ any offer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through the ~~time that~~ Manager or an Alternative Manager on any single given day, but in no event by the ~~relevant Earnings Announcement was first publicly released) through~~ Manager 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~~an Alternative Manager, ~~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~~ event request that the ~~operation of~~ Manager and an Alternative Manager sell Shares on the ~~provisions of clauses (i) and (ii) of Section 3(g), which shall have independent application~~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) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales ~~agent,~~ agent and the 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. i. 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 (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 agreed to by the Company and the 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~~ 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 ~~which the NYSE is scheduled to close~~ 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 ~~regular weekday closing time~~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”), ~~(B) the Company has instructed~~ it will notify the Agent by ~~telephone~~ email notice (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~electronic mail~~the parties) containing the parameters in accordance with which it desires Shares to ~~make~~ 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 (Cwhich 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 ~~Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum~~ entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 reasonable efforts~~ permitted to sell, any ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on Nasdaq or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. ~~The foregoing rate~~ In lieu of ~~compensation shall not apply when the Agent acts as principal, in which case~~ the Company ~~may sell Shares~~ paying all compensation payable to the Agent ~~as principal at a price agreed upon at~~ for the ~~relevant Applicable Time~~ sale of the Shares pursuant to ~~a Terms~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ Nasdaq each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNasdaq. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then currently effective Registration ~~Statement~~ 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 Sales Agreements by the Board, or a duly authorized committee thereof, and notified to the Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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. (gf) ~~Notwithstanding~~ Settlement for sales of Shares pursuant to this Section 4 and made in accordance with the terms of the applicable Acceptance will occur on the second business day (and on and after May 28, 2024, the first business day) that is also a trading day for Nasdaq (other than a day on which Nasdaq is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are 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 day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any ~~other provision of~~ Settlement Date pursuant to this Agreement, the Company shall ~~not offer~~(i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the Agent to use its commercially reasonable efforts to sell ~~or deliver~~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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 Sales 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 Company, but in no event by more than one of them, and the Company shall in no event request that more than one of Agent or the Other Agents sell shares of Common Stock on the same day. (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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer~~ sell, during: 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 ~~sell~~ 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 the Earnings Release and ending on the date of the 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~~Shares that would be sold, ~~(i)~~ and the Agent shall not be obligated to sell, during any period in which the Company ~~is, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

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) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares~~ exclusively through the Agent acting as sales agent or directly to the Agent acting as principal from time to ~~time through the Agent, acting as sales agent~~time, and the 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 terms~~market 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). ~~i. The~~ (b) 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 agreed to by the Company and the 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 has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C)~~ that the Company has satisfied its obligations under Section 6 of this Agreement and that the Company has instructed the Agent to make such sales. 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 such securities for the accounts of such persons in which JonesTrading is acting for the Company in a capacity other than as Agent under this Agreement. ~~The~~ On any Trading Day, the Company may instruct the Agent by telephone (confirmed promptly by telecopy or email, which confirmation will ~~designate~~ be promptly acknowledged by the Agent) as to the maximum ~~amount~~ aggregate dollar value or number of ~~the~~ Shares to be sold by the Agent ~~daily as previously agreed to in writing or electronic transmission by the Agent~~ on such day (in any event not in excess of ~~(i)~~ the ~~amount~~ number available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~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 ~~on a particular day, consistent with its normal trading practices,~~ as sales agent 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) at the time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share so designated by the Company ~~at which such Shares may be sold). ii~~and in the manner and on the terms so designated in writing by the Company. The Company ~~acknowledges~~ and ~~agrees~~ 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 ~~it does~~ 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 ~~under~~ by 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 each of the Agent and the ~~Company~~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. ~~iii. The~~ (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 ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ authorized from time to time, or (ii) in a number in excess of the number or maximum aggregate dollar value of Shares authorized from time to time to be issued and sold under this Agreement, in each case, by the Company’s ~~Board~~ board of ~~Directors (the “Board”)~~directors, or a duly authorized committee thereof, and notified to the Agent in writing. ~~The~~ In addition, the Company may, upon notice to the Agent, suspend the offering of the Shares or the Agent may, upon notice to the ~~other party hereto by telephone (confirmed promptly by electronic mail)~~Company, suspend the offering of the Shares with respect to which the 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 may be given by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged). ~~iv.~~ (d) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and~~ Agent on the ~~Agent pursuant~~ Nasdaq or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ equal to ~~exceed 2.0~~2.5% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. 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~~ Agent, acting as ~~principal~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi. The~~ (e) If acting as a sales agent hereunder, the Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on the ~~NYSE~~ Nasdaq, each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to ~~the~~ such Agent with respect to such sales~~. Such compensation~~ . (f) Under no circumstances shall be 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 ~~invoiced in periodic statements~~ 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 ~~payment~~ respect to which the Agent acts as sales agent be ~~made~~ sold at a price lower than the minimum price therefor authorized from time to time by the ~~Company promptly after its receipt~~ Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing. ~~vii.~~ (g) Settlement for sales of ~~the~~ Shares pursuant to this Section ~~3(a)~~ 2 will occur on the ~~third Business~~ second business day that is also a 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 day, 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 ~~for~~ from the sale of such Shares. Settlement for all ~~such~~ Shares shall be effected by ~~free~~ book-entry delivery of ~~the~~ Shares to the Agent’s account at The Depository Trust Company ~~(“DTC”) in return for~~ against payments by the Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to ~~the~~ an account designated by the Company. If the Company ~~or its transfer agent (if applicable)~~ shall default on its obligation to deliver ~~the~~ Shares on any Settlement Date, the Company ~~shall (A) indemnify and hold the Agent harmless against~~ shall, in addition to any ~~loss~~indemnification obligation pursuant to Section 7, ~~claim or damage arising from or as a result of such default by the Company and (B)~~ pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. ~~viii. At each Applicable Time, Settlement Date, Representation Date~~ (~~as defined in Section 4(k)~~h) ~~and Filing Date (as defined in Section 4(a))~~Notwithstanding any other provision of this Agreement, 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 in which the Company is, or would reasonably be deemed to ~~have affirmed each representation and warranty contained~~ be, in ~~this Agreement as if such representation and warranty were made as~~ possession of ~~such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date.~~ material non-public information. (i) Any obligation of the 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 herein, to the performance by the Company of 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 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

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) 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 the ~~Agent~~Agents, acting as sales ~~agent~~agents, and the ~~Agent 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. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and ~~the~~ 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 has instructed ~~the~~ 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 of this Agreement. The ~~Company~~ Company’s instructions will ~~designate~~ designate, at a minimum, the day or days on which Shares are to be sold, the maximum amount of the Shares to be sold by ~~the~~ such Agent daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by ~~the~~ such Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this ~~Agreement and the Alternative Equity Distribution Agreements~~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 has been terminated under the provisions of Section 8. Subject to the terms and conditions hereof, ~~the~~ 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~~ 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 ~~the~~ either Agent will be successful in selling the Shares, (B) ~~the~~ no Agent will incur no any liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by ~~the~~ such Agent to use ~~its~~ their commercially reasonable efforts consistent with ~~its~~ their normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) ~~the~~ no Agent shall be under no any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Agents and the Company. iii. The Company shall not authorize the issuance and sale of, and the ~~Agent~~ Agents shall not be obligated to use ~~its~~ 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 ~~Agent~~ Agents in writing. The Company or ~~the~~ either Agent may, upon notice to the other ~~party~~ 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 ~~Agent~~ Agents hereby ~~covenants~~ covenant and ~~agrees~~ agree 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 any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Act, including, without limitation, sales of the 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 under~~ 153, sales of the ~~Act (such transactions are hereinafter referred to as “Continuous Offerings”), (2)~~ Shares on any other existing trading market for the Common Stock and sales of the Shares 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 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 agreed by the Company and the ~~Agent~~ Agents pursuant to a Terms Agreement. v. The compensation to the ~~Agent~~ Agents for sales of the Shares with respect to which the ~~Agent acts~~ Agents act as sales ~~agent~~ agents under this Agreement shall be ~~at a mutually agreed rate, not~~ up to ~~exceed~~ 2.0% of the gross sales price of 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 ~~Agent acts~~ Agents act as ~~principal~~principals, in which case the Company may sell Shares to the ~~Agent~~ Agents as ~~principal~~ 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 ~~Agent~~ Agents by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). vi. The ~~Agent~~ Agents shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the ~~Agent~~ Agents with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the ~~Agent~~ Agents to the Company, with payment to be made by the Company promptly after its receipt thereof. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through ~~the~~ an Agent for settlement on such date shall be issued and delivered by the Company to ~~the~~ such Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to ~~the~~ such Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Agents harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Agents any commission to which it they would otherwise be entitled absent such default. If ~~the~~ an Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, ~~the~~ such Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to ~~the~~ such Agent. viii. At each Applicable ~~Time, Settlement~~ Time and Representation Date~~, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a))~~, the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ 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 herein, to the performance by the Company of 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 ~~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~~ Agents of the proposed terms of such Placement. If the ~~Agent~~Agents, acting as ~~principal~~principals, ~~wishes~~ wish to accept such proposed terms (which it they may decline to do for any reason in ~~its~~ their sole discretion) or, following discussions with the Company ~~wishes~~ wish to accept amended terms, the ~~Agent~~ Agents and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Agents unless and until the Company and the ~~Agent~~ 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 ~~Agent~~ Agents 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 ~~Agent~~Agents. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Agents. The commitment of the ~~Agent~~ Agents 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 ~~Agent~~ Agents 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~~ Agents 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 ~~Agent~~Agents. (d) Under no circumstances shall the aggregate ~~value~~ amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) ~~the Maximum Amount~~$125,000,000, (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 ~~Agent~~ Agents in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If ~~either~~ the Company or the ~~Agent has~~ 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. (gf) 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~~ Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for the offer or sale of any Shares, and the ~~Agent~~ 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,~~ information or (ii) except as provided in Section ~~3(h~~3(g) below, at any time ~~during the period commencing on the seventh Business Day prior to~~ 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. (hg) 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 ~~Agent~~ Agents (with a copy to counsel to the ~~Agent~~Agents) a Current Report on Form 8-K 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~~Agents, and obtain the consent of the ~~Agent~~ Agents to the filing thereof (such consent not to be unreasonably withheld), (ii) provide the ~~Agent~~ 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 ~~Agent~~ Agents the opportunity to conduct a due diligence review in accordance with Section ~~4(o~~4(p) hereof and (iv) file such Earnings 8-K with the Commission, then the provisions of clause (~~iii~~ii) of Section ~~3(g~~3(f) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the ~~parties hereto~~ 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~~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~~ hereof, if applicable, and (B) this Section ~~3(h~~3(g) shall in no way affect or limit the operation of the provisions of ~~clauses~~ clause (i) ~~and (ii)~~ of Section ~~3(g~~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) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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 the ~~Agent~~Manager, ~~acting~~ as sales agent, as and when it provides instructions, in its discretion, for the sale of Shares, and the ~~Agent~~ Manager 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 to upon by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 ~~of this Agreement~~hereof. The Company will designate the maximum amount of the Shares to be sold by the ~~Agent~~ Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the ~~Prospectus and the~~ currently effective Registration Statement ~~less (ii) any amounts already~~ or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold ~~pursuant to~~ under this Agreement or, together with all sales of Shares under this Agreement and the Alternative ~~Equity~~ Distribution ~~Agreements) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof~~Agreement, ~~the Agent shall use its commercially reasonable efforts to sell on a particular day, consistent with its normal trading practices, all~~ in an amount in excess 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) at the time of 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 the Agent will be successful in selling the SharesMaximum Amount, (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 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”)~~Directors, or a duly authorized committee thereof, and notified to the ~~Agent~~ Manager by electronic mail substantially in ~~writing~~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. ~~The~~ 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 time of sale, at prices related to prevailing market prices or at negotiated prices. Subject to the terms and conditions of this Section 3(a), 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 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 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 means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At the Market Offerings”). (ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the 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 Agent~~ Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for ~~any reason and at any time~~a specified period (a “Suspension Period”); provided, however, that such ~~suspension or termination~~ 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~~notice and provided, further, that there shall be no obligations under Sections 4(n), 4(o), 4(p) and 4(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. ~~iv.~~ (iii) The ~~Agent~~ Manager 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 ~~ordinary brokers’ transactions between members of~~ At the 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 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 ~~Agent pursuant to a Terms Agreement~~Manager. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company, 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 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 for such Shares (the “Net Proceeds”). ~~vi.~~ (v) The ~~Agent~~ Manager shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ as soon as is reasonably practicable following the close of trading on the NYSE each day in which the Shares are sold ~~under~~ pursuant to this Section 3(a) setting forth the ~~number~~ amount of the Shares sold on such day, ~~the aggregate gross sales proceeds and~~ the Net Proceeds to the Company, and the compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ business day following the date on which such sales are made (each such ~~day~~date, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the ~~Agent~~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 (“~~DTC~~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~~ Company, or its transfer agent (if applicable) ), shall default on upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If The Authorized Company Representatives shall be the ~~Agent breaches this Agreement by failing to deliver~~ contact persons for the ~~Net Proceeds~~ Company for all matters related to the ~~Company on any~~ 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 for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (as defined in Section ~~4(k)~~4(n) ~~and Filing Date (as defined in Section 4(a))~~hereof, the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement 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~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 ~~of this Agreement~~hereof. (bi) 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~~ hereof (each, a “Placement”), it will notify the ~~Agent~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent~~ Company and the ~~Company~~ Manager will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 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 any Terms Agreement, the terms of such Terms Agreement will control. (c) Each sale of the Shares to the Agent 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 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 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 (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 Agent. (di) Under no circumstances shall the aggregate ~~value~~ gross sales proceeds of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the lesser of (iA) the ~~Maximum Amount,~~ amount set forth in Section 1 hereof and (iiB) the ~~number of shares of the Common Stock~~ amount available for ~~issuance~~ offer and sale under the currently effective Registration Statement ~~or (iii)~~ nor shall the ~~number and~~ aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized ~~from time to time~~ to be issued and sold from time to time under this Agreement by the ~~Board~~Company’s Board of Directors, or a duly authorized committee thereof, and notified to the ~~Agent~~ Manager in writing~~. (e) Except pursuant to a reoffer~~ . Further, under no circumstances shall the aggregate number of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made sold pursuant to this Agreement ~~or an~~ and the Alternative ~~Equity~~ 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. (fii) If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other ~~party~~ party, and sales of the Shares under this ~~Agreement and any Terms~~ Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. (gd) ~~Notwithstanding any other provision~~ 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 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~~ Manager, sales effected pursuant to this Agreement may not be ~~obligated to offer or sell any Shares, (i) during any period in which~~ requested by the Company ~~is, or could~~ and need not be ~~deemed to be, in possession of material non-public information, or (ii)~~ made by the Manager 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 operations (each, an “Earnings Announcement”) through and including the time that ~~is 24 hours~~ begins after the ~~time that the Company files (a “Filing Time”)~~ filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K ~~that includes consolidated financial statements~~ as of and within the period required by the Exchange Act (each such date, a “Filing Date”) and ends, for ~~the same period or~~ 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 ~~case may~~ end of the quarter in which the applicable Filing Date occurs. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Manager, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is or could be deemed to be, ~~covered by such Earnings Announcement~~in possession of material non-public information. (hf) ~~If the~~ The Company ~~wishes to offer, sell or deliver Shares at any time during the period from~~ acknowledges and ~~including an Announcement Date through and including the time~~ agrees that ~~is 24 hours after the corresponding Filing Time, the Company shall~~ (i) ~~prepare and deliver~~ 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 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 (Company or any other person or entity if it does not sell Shares for any reason other than ~~any earnings projections~~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, ~~similar forward-looking data~~ and ~~officers’ quotations~~(iii) ~~(each, an “Earnings 8-K”)~~the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement unless a Terms Agreement, in form and substance ~~reasonably~~ mutually satisfactory to the ~~Agent~~Company and Manager, 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~~ executed by the Company and the Manager. (org) The Company agrees that any offer to sell, ~~if later~~any solicitation of an offer to buy, ~~the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released)~~ or any sales of Shares shall only be effected by or through ~~and including the time that is 24 hours after the Filing Time~~ only one of the ~~relevant Quarterly Report~~ Manager or the Alternative Manager on ~~Form 10-Q or Annual Report on Form 10-K~~any single given day, ~~as the case may be. For purposes of clarity~~but in no event by both, ~~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~~ event request that the ~~operation of~~ Manager and the ~~provisions of clauses (i) and (ii) of Section 3(g), which shall have independent application~~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) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent~~Manager, ~~acting~~ as sales agent, and the ~~Agent~~ Manager agrees to use its reasonable efforts to ~~sell,~~ sell as sales agent for the Company, the ~~Shares on the following terms~~Shares. i. (b) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the ~~Agent~~ 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”) that the Company has instructed the ~~Agent~~ Manager to make such sales as sales agent. On any Trading Day, the Company may instruct the Manager by telephone (confirmed promptly by ~~electronic mail~~telecopy or email, which confirmation will be promptly acknowledged by the Manager) as to ~~make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate~~ the maximum ~~amount~~ number of ~~the~~ Shares to be sold by the ~~Agent daily as previously agreed to in writing or electronic transmission by the Agent~~ Manager on such day (in any event not in excess of ~~(i)~~ the ~~amount~~ number available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the ~~Agent~~ Manager 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) at the time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share so 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 selling 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 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~~ (c) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the ~~Agent~~ Manager shall not be obligated to use its reasonable efforts to sell, any ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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~~ board of ~~Directors (the “Board”),~~ directors or a duly authorized committee thereof, and notified to the ~~Agent~~ Manager in writing. ~~The~~ In addition, the Company or the ~~Agent~~ Manager may, upon notice to the other party hereto by telephone (confirmed promptly by ~~electronic mail~~telecopy or email, which confirmation will be promptly acknowledged by the Manager), 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. ~~iv.~~ (d) The ~~Agent hereby covenants and~~ Company agrees ~~not~~ that any offer to ~~make~~ 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 the Company shall in no event request that the Manager and the Joint Manager sell Shares on ~~behalf~~ the same day. Under no circumstances shall the aggregate offering price or number, as the case may be, of ~~the Company~~ Shares sold pursuant to this ~~Section 3(a)~~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 the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act (applicable to securities with an average daily trading volume of $1,000,000 that are issued by an issuer whose common equity securities have a public float value of at least $150,000,000) are not satisfied with respect to the Company or the Shares, it shall promptly notify the other ~~than~~ party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. (Af) ~~(1)~~ The gross sales price of any Shares sold by ~~means of ordinary brokers’ transactions between members~~ the Manager as sales agent hereunder shall be the market price for shares of the 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 agreed Company’s Common Stock sold by the ~~Company and~~ Manager under this Agreement on the ~~Agent pursuant~~ Exchange at the time of such sale. Subject to ~~a Terms~~ Section 2(g) of this Agreement~~. v. The~~ , the compensation payable to the ~~Agent~~ Manager for sales of ~~the~~ Shares with respect to which the ~~Agent~~ Manager acts as sales agent ~~under this Agreement~~ hereunder shall be ~~at a mutually agreed rate, not~~ equal to ~~exceed 2.0~~1.50% of the gross sales price of 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 ~~Section 3(a)~~ Agreement and ~~payable~~ the Additional Equity Distribution Agreement, is less than the aggregate offering price or number, as ~~described~~ the case may be, of Shares set forth in the ~~succeeding subsection (vi~~preamble paragraph of this Agreement, the total compensation payable to the Manager under this Section 2(f) ~~below~~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 ~~foregoing rate of compensation shall not apply when the Agent acts as principal, in which case the~~ Company may sell Shares to the ~~Agent~~ Manager as principal at a price agreed upon at the relevant Applicable ~~Time pursuant to a Terms Agreement~~Time. The remaining proceeds, after further deduction for any transaction fees imposed ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Manager shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi. The Agent~~ (g) 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 ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on the ~~NYSE~~ Exchange each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the ~~aggregate~~ gross sales ~~proceeds and~~ prices of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (i) Settlement for sales of ~~the~~ Shares ~~pursuant to this Section 3(a)~~ will occur on the third ~~Business Day~~ business day that is also a 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 Manager (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds ~~for~~ from the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the ~~Agent~~Manager’s or its designee’s account at The Depository Trust Company ~~(“DTC”)~~ through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver ~~the~~ Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the ~~Agent~~ Manager any ~~commission~~ commission, discount or other compensation to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (bj) If the Company wishes to issue and sell the Shares to the Manager as principal 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~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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 ~~Agent~~ Manager and the Company will enter into a ~~Terms Agreement, in substantially the form of Annex I hereto,~~ terms agreement setting forth the terms of such Placement. The terms set forth in a ~~Terms Agreement~~ terms agreement will not be binding on the Company or the ~~Agent~~ Manager unless and until the Company and the ~~Agent~~ Manager have each executed such ~~Terms Agreement~~ terms agreement accepting all of the terms of such ~~Terms Agreement~~terms agreement. In the event of a conflict between the terms of this Agreement and the terms of a ~~Terms Agreement~~terms agreement, the terms of such ~~Terms Agreement~~ terms agreement will control~~. (c) Each sale of the Shares to the Agent~~ . 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 Agent. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Agent. The commitment of the Agent under no obligation to purchase ~~the~~ Shares ~~pursuant to any Terms Agreement shall be deemed to have been made~~ on ~~the~~ a principal 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 except as otherwise specifically agreed by the Board, or a duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one of the Agent or an Alternative Agent on any single given day, but in no event by more than one, Manager 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreementterms 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, 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. (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 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) of Section 3(g), which shall have independent application.

Appears in 2 contracts

Samples: Equity Distribution Agreement (Zions Bancorporation /Ut/), Equity Distribution Agreement (Zions Bancorporation /Ut/)

Sale and Delivery of Shares. (a) 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 the ~~Agent~~Agents, acting as sales ~~agent~~agents, and the ~~Agent 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. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and ~~the~~ 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 has instructed ~~the~~ 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 of this Agreement. The ~~Company~~ Company’s instructions will ~~designate~~ designate, at a minimum, the day or days on which Shares are to be sold, the maximum amount of the Shares to be sold by ~~the~~ such Agent daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by ~~the~~ such Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this ~~Agreement and the Alternative Equity Distribution Agreements~~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 has been terminated under the provisions of Section 8. Subject to the terms and conditions hereof, ~~the~~ 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 at ay which such Shares may be sold). ii. The Company acknowledges and agrees that (A) there can be no assurance that ~~the~~ either Agent will be successful in selling the Shares, (B) ~~the~~ no 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~~ such Agent to use ~~its~~ their commercially reasonable efforts consistent with ~~its~~ their normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) ~~the~~ no Agent shall be under no any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Agents and the Company. iii. The Company shall not authorize the issuance and sale of, and the ~~Agent~~ Agents shall not be obligated to use ~~its~~ 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 ~~Agent~~ Agents in writing. The Company or ~~the~~ either Agent may, upon notice to the other ~~party~~ 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 ~~Agent~~ Agents hereby ~~covenants~~ covenant and ~~agrees~~ agree 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 any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Act, including, without limitation, sales of the 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 under~~ 153, sales of the ~~Act (such transactions are hereinafter referred to as “Continuous Offerings”), (2)~~ Shares on any other existing trading market for the Common Stock and sales of the Shares 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 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 agreed by the Company and the ~~Agent~~ Agents pursuant to a Terms Agreement. v. The compensation to the ~~Agent~~ Agents for sales of the Shares with respect to which the ~~Agent acts~~ Agents act as sales ~~agent~~ agents under this Agreement shall be ~~at a mutually agreed rate, not to exceed~~ 2.0% of the gross sales price of 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 ~~Agent acts~~ Agents act as ~~principal~~principals, in which case the Company may sell Shares to the ~~Agent~~ Agents as ~~principal~~ 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 ~~Agent~~ Agents by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). vi. The ~~Agent~~ Agents shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE MKT 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 to the Company, and the compensation payable by the Company to the ~~Agent~~ Agents with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the ~~Agent~~ Agents to the Company, with payment to be made by the Company promptly after its receipt thereof. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through ~~the~~ an Agent for settlement on such date shall be issued and delivered by the Company to ~~the~~ such Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Agents harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Agents any commission to which it they would otherwise be entitled absent such default. If ~~the~~ an Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, ~~the~~ such Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to ~~the~~ such Agent. viii. At each Applicable ~~Time, Settlement~~ Time and Representation Date~~, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a))~~, the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ 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 herein, to the performance by the Company of 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 ~~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~~ Agents of the proposed terms of such Placement. If the ~~Agent~~Agents, acting as ~~principal~~principals, ~~wishes~~ wish to accept such proposed terms (which it they may decline to do for any reason in ~~its~~ their sole discretion) or, following discussions with the Company ~~wishes~~ wish to accept amended terms, the ~~Agent~~ Agents and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Agents unless and until the Company and the ~~Agent~~ 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 ~~Agent~~ Agents 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 ~~Agent~~Agents. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Agents. The commitment of the ~~Agent~~ Agents 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 ~~Agent~~ Agents 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~~ Agents 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 ~~Agent~~Agents. (d) Under no circumstances shall the aggregate ~~value~~ amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ 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 by the Board, or a duly authorized committee thereof, and notified to the ~~Agent~~ Agents in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If ~~either~~ the Company or the ~~Agent has~~ 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. (gf) 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~~ Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for the offer or sale of any Shares, and the ~~Agent~~ 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,~~ 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~~ 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. (hg) 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 ~~Agent~~ Agents (with a copy to counsel to the ~~Agent~~Agents) a Current Report on Form 8-K 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~~Agents, and obtain the consent of the ~~Agent~~ Agents to the filing thereof (such consent not to be unreasonably withheld), (ii) provide the ~~Agent~~ 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 ~~Agent~~ Agents the opportunity to conduct a due diligence review in accordance with Section ~~4(o~~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 ~~parties hereto~~ 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~~ 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) of Section 3(g), 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) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales ~~agent,~~ agent and the 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. i. 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 (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 agreed to by the Company and the 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~~ 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 ~~which the NYSE is scheduled to close~~ 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 ~~regular weekday closing time~~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”), ~~(B) the Company has instructed~~ it will notify the Agent by ~~telephone~~ email notice (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~electronic mail~~the parties) containing the parameters in accordance with which it desires Shares to ~~make~~ 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 (Cwhich 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 ~~Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum~~ entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 reasonable efforts~~ permitted to sell, any ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on Nasdaq or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. ~~The foregoing rate~~ In lieu of ~~compensation shall not apply when the Agent acts as principal, in which case~~ the Company ~~may sell Shares~~ paying all compensation payable to the Agent ~~as principal at a price agreed upon at~~ for the ~~relevant Applicable Time~~ sale of the Shares pursuant to ~~a Terms~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ Nasdaq each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNasdaq. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then currently effective Registration ~~Statement~~ 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 Sales Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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. (gf) ~~Notwithstanding~~ Settlement for sales of Shares pursuant to this Section 4 and made in accordance with the terms of the applicable Acceptance will occur on the second business day that is also a trading day for Nasdaq (other than a day on which Nasdaq is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are 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 day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any ~~other provision of~~ Settlement Date pursuant to this Agreement, the Company shall ~~not offer~~(i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the Agent to use its commercially reasonable efforts to sell ~~or deliver~~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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 Sales 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 Company, but in no event by more than one of them, and the Company shall in no event request that more than one of Agent or the Other Agent sell shares of Common Stock on the same day. (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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer~~ sell, during: 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 ~~sell~~ 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 the Earnings Release and ending on the date of the 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~~Shares that would be sold, ~~(i)~~ and the Agent shall not be obligated to sell, during any period in which the Company ~~is, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

Appears in 2 contracts

Samples: Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de)

Sale and Delivery of Shares. (a) 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 the ~~Agent~~Manager, acting as sales agent, and the ~~Agent~~ Manager agrees to use its 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 agreed to by the Company and the ~~Agent~~ 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 has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the ~~Agent~~ Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its ~~commercially~~ reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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 ~~Agent~~ Manager under this Section 3(a) on the Nasdaq at the time of 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)~~Shares. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Manager will be successful in selling the Shares, (B) the ~~Agent~~ Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this ~~Agreement,~~ Agreement and (C) the ~~Agent~~ Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Manager and the Company. (iii. ) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ 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 ~~Agent~~ Manager in writing. The Company or the ~~Agent~~ Manager may, upon notice to the other party 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. (iv. ) The ~~Agent~~ Manager 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 ordinary brokers’ transactions between members of ~~the NYSE~~ Nasdaq that qualify for delivery of a ~~Prospectus~~ prospectus to Nasdaq 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 agreed by the Company and the ~~Agent~~ Manager pursuant to a Terms Agreement. v. (v) The compensation to the ~~Agent~~ Manager for sales of the Shares with respect to which the ~~Agent~~ Manager acts as sales agent under this Agreement shall be ~~at a mutually agreed rate, not to exceed 2.0~~2% of the gross sales price of 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~~ Manager acts as principal, in which case the Company may sell Shares to the ~~Agent~~ 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 ~~on the Agent~~ by any governmental or self-regulatory organization in respect of such ~~sales~~sales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi. ) The ~~Agent~~ Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ 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 to the ~~Company,~~ Company and the compensation payable by the Company to the ~~Agent~~ Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the ~~Agent~~ Manager to the Company, with payment to be made by the Company promptly after its receipt thereof. (vii. ) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If the ~~Agent~~ Manager breaches this Agreement by failing to deliver the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees to the Company on any Settlement Date for the Shares delivered by the Company, the ~~Agent~~ Manager will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the ~~Agent~~Manager. (viii. ) At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section ~~4(a~~4(x)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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 ~~Agent~~ Manager and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Manager unless and until the Company and the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Manager. The commitment of the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~ Manager in the reoffering of the ~~Shares,~~ Shares and the ~~time and~~ 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 ~~Agent~~Manager. (d) Under no circumstances shall the number and aggregate ~~value~~ amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) the ~~Maximum Amount~~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 ~~Agent~~ Manager in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either ~~the Company or the Agent~~ 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. (gf) Notwithstanding any other provision of this ~~Agreement,~~ 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~~Shares that would be sold, and the ~~Agent~~ Manager shall not be obligated to ~~offer or sell any Shares~~sell, (i) during any period in which the Company is, or could be deemed to be, in possession of material non-public ~~information,~~ information or (ii) except as provided in Section ~~3(h~~3(g) ~~below~~hereof, at any time ~~during the period commencing on the seventh Business Day prior to~~ from and including the date ~~(each, an “Announcement Date”)~~ on which the Company ~~shall issue~~ 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 “Filing Time”)~~ a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement. (hg) If the Company wishes to ~~offer,~~ offer or sell ~~or deliver~~ Shares at any time during the period from and including an Earnings Announcement ~~Date~~ through and including the time that is 24 hours after the corresponding Filing Time, the Company shall first (i) prepare and deliver to the ~~Agent~~ Manager (with a copy to counsel to the ~~Agent~~Manager) a Current Report on Form 8-K ~~which shall include~~ that includes substantially the same financial and related information as that was ~~set forth~~ included in ~~the relevant~~ such Earnings Announcement (other than any earnings ~~projections,~~ projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the ~~Agent~~Manager and, ~~and~~ prior to its filing, obtain the consent of the ~~Agent~~ Manager to ~~the~~ such filing ~~thereof~~ (~~such~~ which consent shall not to be unreasonably withheld), (iiiii) provide the ~~Agent~~ Manager with the officers’ certificate, ~~accountants’ letter and~~ opinions and letters of counsel ~~called for by~~ and accountants’ letter specified in Sections 4(k), (l), (m) and (n~~) hereof;~~ ), respectively, hereof, (~~iii~~iv) afford the ~~Agent~~ Manager the opportunity to conduct a due diligence review in accordance with Section 4(o) hereof prior to filing such Earnings 8-K and (ivv) file such Earnings 8-K with the Commission, then the ~~provisions~~ provision of clause (~~iii~~ii) of Section ~~3(g~~3(f) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter ~~and opinions and letters of counsel~~ pursuant to this Section ~~3(h~~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 and legal opinions and~~ letters as provided in ~~Section 4 hereof~~ Sections 4(k), (l), (m) and (n), respectively, hereof, and (B) this Section ~~3(h~~3(g) shall in no way affect or limit the operation of ~~the provisions of clauses~~ clause (i) ~~and (ii) of~~ in Section ~~3(g~~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) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, and 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~~ through or to ~~time through~~ the ~~Agent~~Manager, ~~acting~~ as sales ~~agent~~agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the ~~Agent~~ 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. (i) The Shares are to be sold by the Manager on a daily basis or otherwise as shall be mutually agreed to upon by the Company and the ~~Agent~~ Manager on any ~~day that (A) is a~~ trading day for ~~the NYSE~~ Nasdaq (other than a day on which ~~the NYSE~~ Nasdaq is scheduled to close prior to its regular weekday closing time) (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, as such Schedule B may be amended from time to time (the “Authorized Company Representatives”), has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic ~~mail~~mail 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 and (CB) the Company has satisfied its obligations under ~~Section~~ Sections 4, 5 and 6 ~~of this Agreement~~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 substantially in the form attached hereto as Exhibit 3(a)(i) the maximum amount of the Shares to be sold by the ~~Agent~~ Manager daily or over a specific trading period as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the ~~currently effective~~ Registration Statement ~~less (ii) any amounts already~~ or in an 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 ~~pursuant to~~ under this Agreement ~~and~~ or below any minimum price below which sales of the ~~Alternative Equity Distribution Agreements~~Shares may not be effected) and any other limitations specified by the ~~minimum price per Share at~~ 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 ~~such Shares may be sold~~the Manger is acting for the Company in a capacity other than as Manager under this Agreement. Subject to the terms and conditions ~~hereof~~of this Section 3(a), the ~~Agent~~ Manager may sell the 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, to or through a market maker at market prices prevailing at the time of sale, at prices related to prevailing market prices or 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 ~~on a particular day, consistent with its normal trading practices,~~ all of the Shares ~~designated for~~ designated; provided, however, that the ~~sale by~~ Manager shall have no obligation to offer or sell any Shares, and 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) at the time of 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 the Manager shall have no such obligation, in the event that an offer or sale of the Shares on behalf of the Company may, 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 means of ordinary brokers’ transactions between members of Nasdaq that qualify for delivery of a Prospectus to Nasdaq in accordance with Rule 153 under the Act. (Aii) ~~there can~~ 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 ~~no assurance that~~ effected at or above the ~~Agent will be successful~~ price designated by the Company in ~~selling the Shares~~any such instruction. In addition, ~~(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 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 Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for ~~any reason and at any time~~a specified period (a “Suspension Period”); provided, however, that such ~~suspension or termination~~ 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~~notice and provided, further, that there shall be no obligations under Sections 4(m), 4(n), 4(p) and 4(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. ~~iv.~~ (iii) The ~~Agent~~ Manager 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 ~~ordinary brokers’ transactions between members of~~ At the 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 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 ~~Agent pursuant to a Terms Agreement~~Manager. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company, 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~~3.5% of the gross sales price of 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 for such Shares (the “Net Proceeds”). ~~vi. The Agent~~ (v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by ~~facsimile or~~ electronic mail) ~~to the Company promptly~~ as soon as is reasonably practicable following the close of trading on ~~the NYSE~~ Nasdaq each day in which the Shares are sold ~~under~~ pursuant to this Section 3(a) setting forth (i) the number of ~~the~~ Shares sold on such day, ~~the aggregate gross sales proceeds and~~ (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business Day~~ second business day that is also a trading day on Nasdaq following the date on which such sales are made (each such ~~day~~date, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the ~~Agent~~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 (“DTC”) 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~~ Company, or its transfer agent (if applicable) ), shall default on 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 ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If The Authorized Company Representatives shall be the ~~Agent breaches this Agreement by failing to deliver~~ contact persons for the ~~Net Proceeds~~ Company for all matters related to the ~~Company on any Settlement Date for~~ settlement of the transfer of the Shares ~~delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent~~through DTC for purposes of this Section 3(a)(vi). ~~viii.~~ (vii) At each ~~Applicable Time, Settlement~~ Representation Date~~, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a))~~, the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement 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~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 ~~of this Agreement~~hereof. (b) 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) hereof, it will notify the Manager of ~~this Agreement~~ the proposed terms of such issuance and sale (each, a “Placement”)~~, it will notify the Agent of the proposed terms of such Placement~~. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent~~ Company and the ~~Company~~ Manager will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 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 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 Manager 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 ~~Agent~~ Manager shall be made in accordance with the terms of this Agreement ~~and~~or, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Agent. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Agent. The ~~commitment of the Agent~~ Manager’s commitment, if any, to purchase Shares from the ~~Shares pursuant to any Terms Agreement~~ 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. ~~Each~~ At the time of each Terms ~~Agreement~~ Agreement, the Manager shall specify the ~~number of~~ requirements, if any, for the ~~Shares~~ officers’ certificates, legal opinions and comfort letters pursuant to ~~be purchased by the Agent pursuant thereto~~Sections 4(m), ~~the price to be paid to the Company for such Shares~~4(n), 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 (each such time and date being referred to herein as a “Time of Delivery”4(p) 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. (d4(q) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writinghereof. (e) ~~Except pursuant~~ Subject to ~~a reoffer of Shares~~ the limitations set forth herein and as ~~described in Section 3(c) hereof,~~ may be mutually agreed upon by the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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~~Manager, ~~however, that (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii)~~ sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made effected pursuant to this Agreement ~~or an Alternative Equity Distribution Agreement. (f) If either~~ may not be requested by 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, 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. (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 need not be ~~obligated to offer or sell any Shares,~~ made by the Manager (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 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) 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 “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, and (B) 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. (hf) ~~If the~~ The Company ~~wishes to offer, sell or deliver Shares at any time during the period from~~ acknowledges and ~~including an Announcement Date through and including the time~~ agrees that ~~is 24 hours after the corresponding Filing Time, the Company shall~~ (i) ~~prepare and deliver to~~ there can be no assurance that the ~~Agent (with a copy to counsel to~~ Manager will be successful in selling 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)Shares, (ii) ~~provide~~ the ~~Agent~~ 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 ~~officers’ certificate~~terms of this Agreement, ~~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)~~ Manager 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 under any obligation to purchase Shares 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 a principal basis pursuant to this ~~Section 3(h) shall not relieve~~ Agreement except as otherwise specifically agreed by the Manager and the Company ~~from any of its obligations under this Agreement with respect~~ pursuant 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) of Section 3(g), which shall have independent applicationa 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) 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 the ~~Agent~~Agents, acting as sales ~~agent~~agents, and the ~~Agent 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. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and ~~the~~ 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 has instructed ~~the~~ 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 of this Agreement. The ~~Company~~ Company’s instructions will ~~designate~~ designate, at a minimum, the day or days on which Shares are to be sold, the maximum amount of the Shares to be sold by ~~the~~ such Agent daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by ~~the~~ such Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this ~~Agreement and the Alternative Equity Distribution Agreements~~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 has been terminated under the provisions of Section 8. Subject to the terms and conditions hereof, ~~the~~ 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~~ 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 ~~the~~ either Agent will be successful in selling the Shares, (B) ~~the~~ no Agent will incur no any liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by ~~the~~ such Agent to use ~~its~~ their commercially reasonable efforts consistent with ~~its~~ their normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) ~~the~~ no Agent shall be under no any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Agents and the Company. iii. The Company shall not authorize the issuance and sale of, and the ~~Agent~~ Agents shall not be obligated to use ~~its~~ 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 ~~Agent~~ Agents in writing. The Company or ~~the~~ either Agent may, upon notice to the other ~~party~~ 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 ~~Agent~~ Agents hereby ~~covenants~~ covenant and ~~agrees~~ agree 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 any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Act, including, without limitation, sales of the 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 under~~ 153, sales of the ~~Act (such transactions are hereinafter referred to as “Continuous Offerings”), (2)~~ Shares on any other existing trading market for the Common Stock and sales of the Shares 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 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 agreed by the Company and the ~~Agent~~ Agents pursuant to a Terms Agreement. v. The compensation to the ~~Agent~~ Agents for sales of the Shares with respect to which the ~~Agent acts~~ Agents act as sales ~~agent~~ agents under this Agreement shall be ~~at a mutually agreed rate, not~~ up to ~~exceed~~ 2.0% of the gross sales price of 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 ~~Agent acts~~ Agents act as ~~principal~~principals, in which case the Company may sell Shares to the ~~Agent~~ Agents as ~~principal~~ 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 ~~Agent~~ Agents by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). vi. The ~~Agent~~ Agents shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the ~~Agent~~ Agents with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the ~~Agent~~ Agents to the Company, with payment to be made by the Company promptly after its receipt thereof. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through ~~the~~ an Agent for settlement on such date shall be issued and delivered by the Company to ~~the~~ such Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to ~~the~~ such Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Agents harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Agents any commission to which it they would otherwise be entitled absent such default. If ~~the~~ an Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, ~~the~~ such Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to ~~the~~ such Agent. viii. At each Applicable ~~Time, Settlement~~ Time and Representation Date~~, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a))~~, the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ 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 herein, to the performance by the Company of 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 ~~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~~ Agents of the proposed terms of such Placement. If the ~~Agent~~Agents, acting as ~~principal~~principals, ~~wishes~~ wish to accept such proposed terms (which it they may decline to do for any reason in ~~its~~ their sole discretion) or, following discussions with the Company ~~wishes~~ wish to accept amended terms, the ~~Agent~~ Agents and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Agents unless and until the Company and the ~~Agent~~ 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 ~~Agent~~ Agents 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 ~~Agent~~Agents. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Agents. The commitment of the ~~Agent~~ Agents 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 ~~Agent~~ Agents 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~~ Agents 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 ~~Agent~~Agents. (d) Under no circumstances shall the aggregate ~~value~~ amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ 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 by the Board, or a duly authorized committee thereof, and notified to the ~~Agent~~ Agents in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If ~~either~~ the Company or the ~~Agent has~~ 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. (gf) 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~~ Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for the offer or sale of any Shares, and the ~~Agent~~ 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,~~ information or (ii) except as provided in Section ~~3(h~~3(g) below, at any time ~~during the period commencing on the seventh Business Day prior to~~ 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. (hg) 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 ~~Agent~~ Agents (with a copy to counsel to the ~~Agent~~Agents) a Current Report on Form 8-K 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~~Agents, and obtain the consent of the ~~Agent~~ Agents to the filing thereof (such consent not to be unreasonably withheld), (ii) provide the ~~Agent~~ 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 ~~Agent~~ Agents the opportunity to conduct a due diligence review in accordance with Section ~~4(o~~4(p) hereof and (iv) file such Earnings 8-K with the Commission, then the provisions of clause (~~iii~~ii) of Section ~~3(g~~3(f) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the ~~parties hereto~~ 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~~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~~ hereof, if applicable, and (B) this Section ~~3(h~~3(g) shall in no way affect or limit the operation of the provisions of ~~clauses~~ clause (i) ~~and (ii)~~ of Section ~~3(g~~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.)

Appears in 2 contracts

Samples: Equity Distribution Agreement (Zions Bancorporation /Ut/), Equity Distribution Agreement (Zions Bancorporation /Ut/)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares~~ exclusively through the Agent acting as sales agent or directly to the Agent acting as principal from time to ~~time through the Agent, acting as sales agent~~time, and the 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 terms~~market 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). ~~i. The~~ (b) 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 agreed to by the Company and the 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 has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C)~~ that the Company has satisfied its obligations under Section 6 of this Agreement and that the Company has instructed the Agent to make such sales. 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 such securities for the accounts of such persons in which JonesTrading is acting for the Company in a capacity other than as Agent under this Agreement. ~~The~~ On any Trading Day, the Company may instruct the Agent by telephone (confirmed promptly by telecopy or email, which confirmation will ~~designate~~ be promptly acknowledged by the Agent) as to the maximum ~~amount~~ aggregate dollar value or number of ~~the~~ Shares to be sold by the Agent ~~daily as previously agreed to in writing or electronic transmission by the Agent~~ on such day (in any event not in excess of ~~(i)~~ the ~~amount~~ number available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~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 ~~on a particular day, consistent with its normal trading practices,~~ as sales agent 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) at the time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share so designated by the Company ~~at which such Shares may be sold). ii~~and in the manner and on the terms so designated in writing by the Company. The Company ~~acknowledges~~ and ~~agrees~~ 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 ~~it does~~ 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 ~~under~~ by 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 each of the Agent and the ~~Company~~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. ~~iii. The~~ (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 ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ authorized from time to time, or (ii) in a number in excess of the number or maximum aggregate dollar value of Shares authorized from time to time to be issued and sold under this Agreement, in each case, by the Company’s ~~Board~~ board of ~~Directors (the “Board”)~~directors, or a duly authorized committee thereof, and notified to the Agent in writing. ~~The~~ In addition, the Company may, upon notice to the Agent, suspend the offering of the Shares or the Agent may, upon notice to the ~~other party hereto by telephone (confirmed promptly by electronic mail)~~Company, suspend the offering of the Shares with respect to which the 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 may be given by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged). ~~iv.~~ (d) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and~~ Agent on the ~~Agent pursuant~~ Nasdaq or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ equal to ~~exceed 2.0~~up to 3.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. 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~~ Agent, acting as ~~principal~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi. The~~ (e) If acting as a sales agent hereunder, the Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on the ~~NYSE~~ Nasdaq, each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to ~~the~~ such Agent with respect to such sales~~. Such compensation~~ . (f) Under no circumstances shall be 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 ~~invoiced in periodic statements~~ 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 ~~payment~~ respect to which the Agent acts as sales agent be ~~made~~ sold at a price lower than the minimum price therefor authorized from time to time by the ~~Company promptly after its receipt~~ Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing. ~~vii.~~ (g) Settlement for sales of ~~the~~ Shares pursuant to this Section ~~3(a)~~ 2 will occur on the ~~third Business~~ second business day that is also a 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 day, 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 ~~for~~ from the sale of such Shares. Settlement for all ~~such~~ Shares shall be effected by ~~free~~ book-entry delivery of ~~the~~ Shares to the Agent’s account at The Depository Trust Company ~~(“DTC”) in return for~~ against payments by the Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to ~~the~~ an account designated by the Company. If the Company ~~or its transfer agent (if applicable)~~ shall default on its obligation to deliver ~~the~~ Shares on any Settlement Date, the Company ~~shall (A) indemnify and hold the Agent harmless against~~ shall, in addition to any ~~loss~~indemnification obligation pursuant to Section 7, ~~claim or damage arising from or as a result of such default by the Company and (B)~~ pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. ~~viii. At each Applicable Time, Settlement Date, Representation Date~~ (~~as defined in Section 4(k)~~h) ~~and Filing Date (as defined in Section 4(a))~~Notwithstanding any other provision of this Agreement, 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 in which the Company is, or would reasonably be deemed to ~~have affirmed each representation and warranty contained~~ be, in ~~this Agreement as if such representation and warranty were made as~~ possession of ~~such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date.~~ material non-public information. (i) Any obligation of the 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 herein, to the performance by the Company of 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 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

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) 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 the ~~Agent~~Manager, acting as sales agent, and the ~~Agent~~ Manager agrees to use its reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. ~~i. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by~~ (i) Each time that the Company wishes to issue and ~~the Agent 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”), it will notify the Manager by email notice (B) the Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Agent daily as previously or other method mutually agreed to in writing ~~or electronic transmission~~ by the ~~Agent~~ parties) (a “Placement Notice”) containing the 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 in any ~~event not in excess of (i) the amount available for issuance under the Prospectus~~ Trading Day and ~~the currently effective Registration Statement less (ii)~~ any ~~amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) and the~~ minimum price ~~per Share at~~ below which sales may not be made, a form of which containing such ~~Shares may be sold~~minimum sales parameters necessary is attached hereto as Schedule 1. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its ~~commercially~~ reasonable efforts to sell ~~on a particular day, consistent with its normal trading practices,~~ all of the Shares ~~designated for~~ subject to a Placement Notice in the ~~sale~~ time frame specified therein. (ii) The Placement Notice shall originate from any of the individuals from the Company set 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 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 the ~~Company on such day. The gross sales price~~ Manager unless and until (i) the entire amount of the Shares to be sold under ~~this Section 3(a~~the Placement Notice have been sold, (ii) shall be the market price for shares of the Company’s Common Stock sold by the Agent under this Section 3(a) at the time of 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~~ 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 ~~may be sold)~~unless and until the Company delivers a Placement Notice to the Manager, and then only upon the terms specified therein and herein. ~~ii.~~ (iii) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Manager will be successful in selling the Shares, (B) the ~~Agent~~ Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the ~~Agent~~ Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Manager and the Company. ~~iii.~~ (iv) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ 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 ~~Agent~~ Manager in ~~writing~~writing in the Placement Notice. The Company or the ~~Agent~~ Manager may, upon notice to the other party 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. ~~iv.~~ (v) The ~~Agent~~ Manager 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 ordinary brokers’ transactions between members of the ~~NYSE~~ Nasdaq Stock Market LLC that qualify for delivery of a Prospectus to the Nasdaq Stock Market LLC 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 agreed by the Company and the ~~Agent~~ Manager pursuant to a Terms Agreement. v. (vi) The compensation to the ~~Agent~~ Manager for sales of the Shares with respect to which the ~~Agent~~ Manager acts as sales agent under this Agreement shall be ~~at a mutually agreed rate, not~~ up to ~~exceed 2.0~~3.0% of the gross sales price of the Shares sold pursuant to this Section 3(a) and payable as described in the succeeding subsection (viviii) below. The foregoing rate of compensation shall not apply when the ~~Agent~~ Manager acts as principal, in which case the Company may sell Shares to the ~~Agent~~ 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 ~~on the Agent~~ by any governmental or self-regulatory organization in respect of such ~~sales~~sales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). ~~vi.~~ (vii) The ~~Agent~~ Manager shall provide written confirmation (which may be by ~~facsimile or~~ electronic mail) to the Company ~~promptly~~ following the close of trading on the ~~NYSE~~ Nasdaq Global Select Market each day in on 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 to the Company, and the compensation payable by the Company to the ~~Agent~~ Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the ~~Agent~~ Manager to the Company, with payment to be made by the Company promptly after its receipt thereof. ~~vii.~~ (viii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business Day~~ second business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If the ~~Agent~~ Manager breaches this Agreement by failing to deliver the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees to the Company on any Settlement Date for the Shares delivered by the Company, the ~~Agent~~ Manager will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the ~~Agent~~Manager. ~~viii.~~ (ix) At each Applicable ~~Time, Settlement Date,~~ Time and Representation Date (as defined in Section 4(k)) ~~and Filing Date (as defined in Section 4(a)~~of this Agreement), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) If the Company wishes to issue and sell the Shares pursuant to this Agreement ~~and~~ to the ~~Alternative Equity Distribution Agreements but other than~~ Manager as ~~set forth in Section 3(a) of this Agreement (each, a “Placement”)~~principal, it will ~~notify~~ propose the ~~Agent of the proposed~~ terms of such ~~Placement~~sale to the Manager. If the ~~Agent~~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 ~~Agent~~ Manager and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Manager unless and until each of the Company and the ~~Agent have each~~ 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 ~~Agent~~ 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 ~~Agent~~Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Manager. The commitment of the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~Manager. (d) Under no circumstances shall the number and aggregate ~~value~~ gross sales price of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ 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~~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 ~~Agent~~ Manager in ~~writing~~writing in the Placement Notice. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either ~~the Company or the Agent~~ 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. (gf) Notwithstanding any other provision of this ~~Agreement,~~ 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~~Shares that would be sold, and the ~~Agent~~ Manager shall not be obligated to ~~offer or sell any Shares~~sell, ~~(i)~~ during any period in which the Company is, or ~~could~~ would reasonably 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 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) of Section 3(g), which shall have independent application.

Appears in 2 contracts

Samples: Sales Agreement (Apellis Pharmaceuticals, Inc.), Open Market Sale Agreement (Apellis Pharmaceuticals, Inc.)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales ~~agent,~~ agent and the Agent agrees to use its commercially reasonable efforts to ~~sell,~~ sell as sales agent for the Company, the Shares on the following terms. i. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Agent daily as previously agreed to in writing or electronic transmission by the Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) 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 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) at the time of 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 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 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 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 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. iv. The Agent 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~~) (1~~) by means of ordinary brokers’ transactions ~~between members of the NYSE~~ 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 “~~Continuous~~ At the Market 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 agreed by the Company and the Agent pursuant to a Terms Agreement. v. The compensation to the 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 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 for such Shares (the “Net Proceeds”). viAgent. The Agent covenants and agrees that it shall ~~provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close~~ not engage in a sale of ~~trading~~ Shares on the ~~NYSE 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 to the~~ Company, and the compensation payable by the Company to the 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for 's behalf that would constitute the sale of ~~such Shares~~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. ~~Settlement for all such Shares shall be effected by free delivery of the Shares~~ Subject to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Dateprevious sentence, the Company ~~shall (A) indemnify~~ acknowledges and ~~hold~~ agrees that in the ~~Agent harmless against any loss, claim or damage arising from or as~~ event a ~~result~~ sale of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company ~~shall~~ 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 ~~subject to~~ deemed an “underwriter” under the ~~continuing accuracy of~~ 1933 Act in a transaction that is not an At the ~~representations~~ Market Offering and ~~warranties of~~ the Company ~~herein~~consents to such sale, ~~to the performance by~~ the Company ~~of its obligations hereunder and~~ will provide 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 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~~ at the Agent’s request and upon reasonable advance notice to the Company, on or prior to the Settlement Date (as ~~principal, wishes to accept~~ defined below) for 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~~transaction, 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 Agent 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 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 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 (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 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 ~~this Agreement and any other information or documents required~~ its obligations by each purchaser whose offer to purchase Shares has been solicited by the ~~Agent.~~ Agent and accepted by the Company. Each time that the Company wishes to issue and sell Shares hereunder (deach, a “Placement”), it will notify the Agent by email notice (or other method mutually agreed to in writing by the parties) ~~Under no circumstances~~ containing the parameters in accordance with which it desires Shares to be sold, which shall ~~the aggregate value of the Shares sold pursuant to this Agreement, the Alternative Equity Distribution Agreements and any Terms Agreement exceed (i) the Maximum Amount, (ii)~~ at a minimum include the number of ~~shares~~ 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 ~~Common Stock available for issuance under~~ individuals from the ~~currently effective Registration Statement or~~ Company set forth on Schedule II (~~iii) the number and aggregate amount~~ with a copy to each of the ~~Shares authorized~~ 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~~ time. If the Agent wishes to ~~be issued and sold under this Agreement~~ 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 ~~Board, or a duly authorized committee thereof,~~ parties) addressed to all of the individuals from the Company and ~~notified to~~ the Agent ~~in writing.~~ set forth on Schedule II) accepting such terms (ethe "Agent Acceptance") ~~Except pursuant to a reoffer of Shares as described in Section 3(c) hereof,~~ or setting forth the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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 terms that the Agent ~~and any of~~ is willing to accept. Where the Alternative Agents sell Shares on the same day; provided, however, that (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth terms provided in the ~~instrument governing~~ Placement Notice are proposed to be modified as provided for in the immediately preceding sentence, such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall terms will not ~~apply~~ be binding 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, 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. (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~~ delivers to the Agent ~~given~~ an acceptance by ~~telephone~~ email (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~telecopy~~ the parties) of all of the terms of such Placement Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or ~~email~~the Agent Acceptance becomes effective, the "Acceptance"), which email or other communication shall ~~cancel any instructions for~~ be addressed to all of the ~~offer or sale of any Shares,~~ 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 ~~not~~ be ~~obligated to offer or sell any Shares, (i) during any period in which~~ effective upon receipt by the Company isof the Agent Acceptance or, ~~or could be deemed to be, in possession of material non-public information, or (ii) except~~ if modified as provided ~~in Section 3(h) below~~above, ~~at any time during~~ upon receipt by the ~~period commencing on the seventh Business Day prior to the date (each, an “Announcement Date”) on which~~ Agent of 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 periodsAcceptance, 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~~ unless and ~~including an Announcement Date through and including the time that is 24 hours after the corresponding Filing Time, the Company shall~~ until (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 entire amount of the ~~Agent to~~ Shares covered by the ~~filing thereof (such consent not to be unreasonably withheld)~~Acceptance have been sold, (ii) ~~provide the Agent~~ in accordance with the ~~officers’ certificate, accountants’ letter and opinions and letters of counsel called for by Sections 4(k~~notice requirements set forth in Section 4(c), ~~(l), (m) and (n) hereof; respectively~~the Company suspends or terminates the Placement Notice, (iii) ~~afford~~ the ~~Agent~~ Company issues a subsequent Placement Notice with parameters superseding those on the ~~opportunity to conduct a due diligence review in accordance with Section 4(o) hereof and~~ earlier dated Placement Notice, or (iv) ~~file such Earnings 8-K with~~ the ~~Commission, then~~ Agreement has been terminated under the provisions of ~~clause (iii) of~~ Section ~~3(g) shall not be applicable for the period from~~ 9. It is expressly acknowledged and ~~after the time at which the foregoing conditions shall have been satisfied (or, if later, the time~~ agreed 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 neither the Company ~~from~~ nor the Agent will have any ~~of its obligations under this Agreement~~ obligation whatsoever with respect to ~~any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as~~ a Placement unless and until the ~~case may be, including, without limitation,~~ Company delivers a Placement Notice to the ~~obligation to deliver officers’ certificates, accountants’ letters~~ Agent 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~~ there occurs with respect thereto either (i) ~~and~~ an Agent Acceptance or (ii) ~~of Section 3(g)~~a Company Acceptance pursuant to the terms set forth above, ~~which shall have independent application.~~and then only upon the terms specified in the relevant

Appears in 1 contract

Samples: Equity Distribution Agreement (Prospect Capital Corp)

Sale and Delivery of Shares. (a) 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 the ~~Agent~~Agents, acting as sales ~~agent~~agents, and the ~~Agent 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. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and ~~the~~ 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 has instructed ~~the~~ 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 of this Agreement. The ~~Company~~ Company’s instructions will ~~designate~~ designate, at a minimum, the day or days on which Shares are to be sold, the maximum amount of the Shares to be sold by ~~the~~ such Agent daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by ~~the~~ such Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this ~~Agreement and the Alternative Equity Distribution Agreements~~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 has been terminated under the provisions of Section 8. Subject to the terms and conditions hereof, ~~the~~ 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~~ 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 ~~the~~ any Agent will be successful in selling the Shares, (B) ~~the~~ no Agent will incur no any liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by ~~the~~ such Agent to use ~~its~~ their commercially reasonable efforts consistent with ~~its~~ their normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) ~~the~~ no Agent shall be under no any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Agents and the Company. iii. The Company shall not authorize the issuance and sale of, and the ~~Agent~~ Agents shall not be obligated to use ~~its~~ 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 ~~Agent~~ Agents in writing. The Company or ~~the~~ any Agent may, upon notice to the other ~~party~~ 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 ~~Agent~~ Agents hereby ~~covenants~~ covenant and ~~agrees~~ agree 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 any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Act, including, without limitation, sales of the 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 under~~ 153, sales of the ~~Act (such transactions are hereinafter referred to as “Continuous Offerings”), (2)~~ Shares on any other existing trading market for the Common Stock and sales of the Shares 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 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 agreed by the Company and the ~~Agent~~ Agents pursuant to a Terms Agreement. v. The compensation to the ~~Agent~~ Agents for sales of the Shares with respect to which the ~~Agent acts~~ Agents act as sales ~~agent~~ agents under this Agreement shall be ~~at a mutually agreed rate, not~~ up to ~~exceed~~ 2.0% of the gross sales price of 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 ~~Agent acts~~ Agents act as ~~principal~~principals, in which case the Company may sell Shares to the ~~Agent~~ Agents as ~~principal~~ 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 ~~Agent~~ Agents by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). vi. The ~~Agent~~ Agents shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the ~~Agent~~ Agents with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the ~~Agent~~ 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third~~ second Business Day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through ~~the~~ an Agent for settlement on such date shall be issued and delivered by the Company to ~~the~~ such Agent against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to ~~the~~ such Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Agents harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Agents any commission to which it they would otherwise be entitled absent such default. If ~~the~~ an Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, ~~the~~ such Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to ~~the~~ such Agent. viii. At each Applicable ~~Time, Settlement~~ Time and Representation Date~~, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a))~~, the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ 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 herein, to the performance by the Company of 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 ~~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~~ Agents of the proposed terms of such Placement. If the ~~Agent~~Agents, acting as ~~principal~~principals, ~~wishes~~ wish to accept such proposed terms (which it they may decline to do for any reason in ~~its~~ their sole discretion) or, following discussions with the Company ~~wishes~~ wish to accept amended terms, the ~~Agent~~ Agents and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Agents unless and until the Company and the ~~Agent~~ 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 ~~Agent~~ Agents 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 ~~Agent~~Agents. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Agents. The commitment of the ~~Agent~~ Agents 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 ~~Agent~~ Agents 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~~ Agents 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 ~~Agent~~Agents. (d) Under no circumstances shall the aggregate ~~value~~ amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) ~~the Maximum Amount~~$200,000,000, (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 ~~Agent~~ Agents in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If ~~either~~ the Company or the ~~Agent has~~ 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. (gf) 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~~ Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for the offer or sale of any Shares, and the ~~Agent~~ 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,~~ information or (ii) except as provided in Section ~~3(h~~3(g) below, at any time ~~during the period commencing on the seventh Business Day prior to~~ 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. (hg) 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 ~~Agent~~ Agents (with a copy to counsel to the ~~Agent~~Agents) a Current Report on Form 8-K 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~~Agents, and obtain the consent of the ~~Agent~~ Agents to the filing thereof (such consent not to be unreasonably withheld), (ii) provide the ~~Agent~~ 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 ~~Agent~~ Agents the opportunity to conduct a due diligence review in accordance with Section ~~4(o~~4(p) hereof and (iv) file such Earnings 8-K with the Commission, then the provisions of clause (~~iii~~ii) of Section ~~3(g~~3(f) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the ~~parties hereto~~ 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~~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~~ hereof, if applicable, and (B) this Section ~~3(h~~3(g) shall in no way affect or limit the operation of the provisions of ~~clauses~~ clause (i) ~~and (ii)~~ of Section ~~3(g~~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) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales ~~agent,~~ agent and the 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. i. 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 (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 agreed to by the Company and the 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~~ 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 ~~which the NYSE is scheduled to close~~ 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 ~~regular weekday closing time~~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”), ~~(B) the Company has instructed~~ it will notify the Agent by ~~telephone~~ email notice (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~electronic mail~~the parties) containing the parameters in accordance with which it desires Shares to ~~make~~ 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 (Cwhich 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 ~~Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum~~ entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 reasonable efforts~~ permitted to sell, any ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on NASDAQ or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. ~~The foregoing rate~~ In lieu of ~~compensation shall not apply when the Agent acts as principal, in which case~~ the Company ~~may sell Shares~~ paying all compensation payable to the Agent ~~as principal at a price agreed upon at~~ for the ~~relevant Applicable Time~~ sale of the Shares pursuant to ~~a Terms~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ NASDAQ each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNASDAQ. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then currently effective Registration ~~Statement~~ 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 Cantor Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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. (gf) ~~Notwithstanding~~ Settlement for sales of Shares pursuant to this Section 4 and made in accordance with the terms of the applicable Acceptance will occur on the third business day that is also a trading day for NASDAQ (other than a day on which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made, unless another date shall be agreed to by the Company and the Agent (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any ~~other provision of~~ Settlement Date pursuant to this Agreement, the Company shall ~~not offer~~(i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the Agent to use its commercially reasonable efforts to sell ~~or deliver~~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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 Cantor Agreement shall only be effected by or through only one of Agent or Cantor, as applicable, on any single given day as determined by the Company, but in no event by more than one of them, and the Company shall in no event request that more than one of Agent or Cantor sell shares of Common Stock on the same day. (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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer~~ sell, during: 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 ~~sell any Shares~~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 the 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, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Gladstone Capital Corp)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales ~~agent,~~ agent and the 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. i. 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 (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 agreed to by the Company and the 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~~ 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 ~~which the NYSE is scheduled to close~~ 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 ~~regular weekday closing time~~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”), ~~(B) the Company has instructed~~ it will notify the Agent by ~~telephone~~ email notice (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~electronic mail~~the parties) containing the parameters in accordance with which it desires Shares to ~~make~~ 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 (Cwhich 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 ~~Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum~~ entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on NASDAQ or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ equal to ~~exceed 2.0~~2% of the gross sales price of the Shares for amounts of 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~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ NASDAQ each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNASDAQ. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then 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, the BB&T Agreement and the KCM Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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 4 and made in accordance with the terms of the applicable Acceptance will occur on the third business day that is also a trading day for NASDAQ (other than a day on which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made, unless another date shall be agreed to by the Company and the Agent (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any Settlement Date, the Company shall (i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) ~~Notwithstanding any other provision~~ At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the 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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 Company pursuant to this Agreement shall only be effected by or through only one of Agent, BB&T or KCM on any single given day, but in no event by more than one of them, and the Company shall in no event request that more than one of Agent, BB&T or KCM sell shares of Common Stock on the same day; provided, however, that (i) the foregoing limitation shall not apply to sales solely to employees of the Company, the Adviser, the Administrator or their respective affiliates, or to a trustee or other person acquiring such securities for the accounts of such persons and (ii) 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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer or sell any Shares~~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 (ii) with respect to the Company’s annual report filings on Form 10-K, during any period commencing upon the 50th day following the end of the Company’s fiscal year 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 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, 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 the Company agree that no sales of Shares shall take place for the period beginning on the date of the 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, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Prospect Capital Corp)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares~~ exclusively through an Agent (the “Designated Agent”) acting as sales agent or directly to an Agent acting as principal from time to ~~time through the Agent, acting as sales agent~~time, and the 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 terms~~Company. i. (b) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the 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 has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C)~~ that the Company has satisfied its obligations under Section 6 of this Agreement and that the Company has instructed the Designated Agent to make such sales. 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 such securities for the accounts of such persons in which such Designated Agent is acting for the Company in a capacity other than as Designated Agent under this Agreement. ~~The~~ On any Trading Day, the Company may instruct the Designated Agent by 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 ~~designate~~ be promptly acknowledged by the Designated Agent) as to the maximum ~~amount~~ aggregate dollar value or number of ~~the~~ Shares to be sold by the Designated Agent ~~daily as previously agreed to in writing or electronic transmission by the Agent~~ on such day (in any event not in excess of ~~(i)~~ the ~~amount~~ number available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~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 ~~on a particular day, consistent with its normal trading practices,~~ as sales agent 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) at the time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share so designated by the Company ~~at which such Shares may be sold). ii~~and in the manner and on the terms so designated by the Company. The Company ~~acknowledges~~ and ~~agrees~~ the Designated Agent each acknowledge and agree that (Ai) there can be no assurance that the Designated Agent will be successful in selling the Shares, (Bii) the Designated Agent will incur no liability or obligation to the Company or any other person or entity if ~~it does~~ 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 ~~under~~ by this Agreement, and (Ciii) the Designated Agent shall be under no obligation to purchase Shares on a principal basis ~~pursuant to this Agreement,~~ except as otherwise specifically agreed by each of the Designated Agent and the ~~Company~~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. ~~iii. The~~ (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 ~~Share~~ Shares pursuant to this Agreement (i) at a price lower than the minimum price therefor ~~designated~~ authorized from time to time, or (ii) in a number in excess of the 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~~ board of ~~Directors (the “Board”)~~directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing. ~~The~~ In addition, the Company may, upon notice to the Designated Agent, suspend the offering of the Shares or the Designated Agent may, upon notice to the ~~other party hereto by telephone (confirmed promptly by electronic mail)~~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 may be given by telephone (confirmed promptly by email and shall be addressed to each of the individuals from the Agents set forth on Schedule 1, which confirmation will be promptly acknowledged). ~~iv.~~ (d) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Designated Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Designated Agent ~~pursuant~~ on Nasdaq or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the Designated Agent for sales of ~~the~~ Shares with respect to which the Designated Agent acts as sales agent ~~under this Agreement~~ shall be ~~at a mutually agreed rate, not~~ equal to ~~exceed 2.0~~3.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. 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~~ an Agent, acting as ~~principal~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). Such Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi. The~~ (e) If acting as a sales agent hereunder, the Designated Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company promptly following the close of trading on ~~the NYSE~~ Nasdaq, each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to ~~the~~ such Designated Agent with respect to such sales~~. Such compensation~~ . (f) Under no circumstances shall be 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 ~~invoiced in periodic statements~~ 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 ~~Agent~~ Company’s board of directors, or a duly authorized committee thereof, and notified to the ~~Company~~Designated Agent in writing. In addition, under no circumstances shall any Shares with ~~payment~~ respect to which the Designated Agent acts as sales agent be ~~made~~ sold at a price lower than the minimum price therefor authorized from time to time by the ~~Company promptly after its receipt~~ Company’s board of directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing. ~~vii.~~ (g) Settlement for sales of ~~the~~ Shares pursuant to this Section ~~3(a)~~ 2 will occur on the ~~third Business~~ second business day that is also a 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 day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Designated Agent for settlement on such date shall be ~~issued and~~ delivered by the Company to the Designated Agent against payment of the Net Proceeds ~~for~~ from the sale of such Shares. Settlement for all ~~such~~ Shares shall be effected by ~~free~~ book-entry delivery of ~~the~~ Shares to the Designated Agent’s account at The Depository Trust Company ~~(“DTC”) in return for~~ against payments by the Designated Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to ~~the~~ an account designated by the Company. If the Company ~~or its transfer agent (if applicable)~~ shall default on its obligation to deliver ~~the~~ Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Designated Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Designated Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. ~~viii. At each Applicable Time, Settlement Date, Representation Date~~ (~~as defined in Section 4(k)~~h) ~~and Filing Date (as defined in Section 4(a))~~Notwithstanding any other provision of this Agreement, 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 any period in which the Company’s ixxxxxx xxxxxxx policy, as it exists on the date of the Agreement and as such may be amended from time to 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 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 2(h), 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 ~~if such representation and warranty were made as of such date~~the case may be, ~~modified as necessary to relate to~~ is filed with the ~~Registration Statement and the Prospectus as amended as of such date.~~ Commission. (i) Any obligation of the 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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (bj) 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to ~~sell Shares~~sell, any solicitation of an offer to ~~buy Shares~~buy, or any sales of Shares pursuant to this Agreement shall only be effected by or through an Agent, and only ~~one of the Agent or an Alternative Agent~~ a single Agent, on any single given ~~day~~date, ~~but~~ and in no event by shall the Company request that more than ~~one, and the Company shall in no event request that the~~ one Agent ~~and any of the Alternative Agents~~ sell ~~Shares~~ securities on the same day; ~~provided, however,~~ provided however that (ai) the foregoing limitation shall not apply to (iA) ~~the exercise~~ exercise, vesting or settlement of any option, restricted stock unit, warrant, right or any conversion privilege set forth in the ~~instrument~~ instruction governing such ~~security or~~ securities, (iiB) sales solely to ~~employees~~ 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 ~~persons~~person, (C) grants of options, shares of Common Stock and other awards to purchase or receive shares of Common Stock under the Company’s stock option, stock bonus or other stock plans or arrangements that are in effect or (D) issuances of any shares of Common Stock related to the filing by the Company of 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 (bii) such limitation shall not apply (Y) 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, 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. (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, (iZ) during ~~any~~ a 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~~ has notified 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 operations (each, an “Earnings Announcement”) through and including the time Agents 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, it will not 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 Common Stock 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 (B1) ~~this Section 3(h~~no Company instruction to sell Shares is pending or (2) ~~shall in no way affect or limit the operation of the provisions of clauses (i) and (ii) of Section 3(g), which shall have independent application~~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) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares~~ exclusively through an Agent (the “Designated Agent”) acting as sales agent or directly to an Agent acting as principal from time to ~~time through the Agent, acting as sales agent~~time, and the 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 terms~~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 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. i. (b) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the 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 has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C)~~ that the Company has satisfied its obligations under Section 6 of this Agreement and that the Company has instructed the Designated Agent to make such sales. 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 such securities for the accounts of such persons in which such Designated Agent is acting for the Company in a capacity other than as Designated Agent under this Agreement. ~~The~~ On any Trading Day, the Company may instruct the Designated Agent by 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 individuals from the Designated Agent set forth on Schedule 1, which confirmation will ~~designate~~ be promptly acknowledged by the Designated Agent) as to the maximum ~~amount~~ number of ~~the~~ Shares to be sold by the Designated Agent ~~daily as previously agreed to in writing or electronic transmission by the Agent~~ on such day (in any event not in excess of ~~(i)~~ the ~~amount~~ number available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~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 ~~on a particular day, consistent with its normal trading practices,~~ as sales agent 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) at the time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share so designated by the ~~Company at which such Shares may be sold). ii~~Company. The Company ~~acknowledges~~ and ~~agrees~~ 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~~ 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 ~~under~~ by this Agreement, and (C) the Designated Agent shall be under no obligation to purchase Shares on a principal basis ~~pursuant to this Agreement,~~ except as otherwise specifically agreed by each of the Designated Agent and the ~~Company~~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. ~~iii. The~~ (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 ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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~~ board of ~~Directors (the “Board”)~~directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing. ~~The~~ In addition, the Company may, upon notice to the Designated Agent, suspend the offering of the Shares or the Designated Agent may, upon notice to the ~~other party hereto by telephone (confirmed promptly by electronic mail)~~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 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 shall be addressed to each of the individuals from the Agents set forth on Schedule 1, which confirmation will be promptly acknowledged). ~~iv.~~ (d) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Designated Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Designated Agent ~~pursuant~~ on Nasdaq or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the Designated Agent for sales of ~~the~~ Shares with respect to which the Designated Agent acts as sales agent ~~under this Agreement~~ shall be ~~at a mutually agreed rate, not~~ up to ~~exceed 2.0~~3.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. 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~~ an Agent, acting as ~~principal~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). Such Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi. The~~ (e) If acting as a sales agent hereunder, the Designated Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ Nasdaq, each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to ~~the~~ such Designated Agent with respect to such sales~~. Such compensation~~ . (f) Under no circumstances shall be 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 ~~invoiced in periodic statements~~ 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 ~~Agent~~ Company’s board of directors, or a duly authorized committee thereof, and notified to the ~~Company~~Designated Agent in writing. In addition, under no circumstances shall any Shares with ~~payment~~ respect to which the Designated Agent acts as sales agent be ~~made~~ sold at a price lower than the minimum price therefor authorized from time to time by the ~~Company promptly after its receipt~~ Company’s board of directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing. ~~vii.~~ (g) Settlement for sales of ~~the~~ Shares pursuant to this Section ~~3(a)~~ 2 will occur on the ~~third Business~~ first business day that is also a 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 day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Designated Agent for settlement on such date shall be ~~issued and~~ delivered by the Company to the Designated Agent against payment of the Net Proceeds ~~for~~ from the sale of such Shares. Settlement for all ~~such~~ Shares shall be effected by ~~free~~ book-entry delivery of ~~the~~ Shares to the Designated Agent’s account at The Depository Trust Company ~~(“DTC”) in return for~~ against payments by the Designated Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to ~~the~~ an account designated by the Company. If the Company ~~or its transfer agent (if applicable)~~ shall default on its obligation to deliver ~~the~~ Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Designated Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Designated Agent any commission to which it would otherwise be entitled absent such default~~. If the Agent breaches~~ . (h) Notwithstanding any other provision of this ~~Agreement by failing to deliver the Net Proceeds to~~ Agreement, the Company ~~on any Settlement Date for~~ and the Designated Agent agree that no sales of Shares ~~delivered by the Company~~shall take place, ~~the Agent will pay~~ and the Company ~~interest based on~~ shall not request the ~~effective overnight federal funds rate on such unpaid amount less~~ sale of any ~~compensation due~~ Shares that would be sold, and the Designated Agent shall not be obligated to sell, during any period in which the ~~Agent~~Company is, or could be deemed to be, in possession of material non-public information. ~~viii.~~ (i) At each Applicable Time, Settlement Date, ~~Representation~~ Registration Statement Amendment Date ~~(as defined in Section 4(k))~~ and ~~Filing Date (as defined in Section 4(a))~~each Company Periodic Report Date, the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement 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~~Agreement. Any obligation of the 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 herein, to the performance by the Company of 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 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Pulse Biosciences, Inc.)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales ~~agent,~~ agent and the 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. i. 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 (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 agreed to by the Company and the 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~~ 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 ~~which the NYSE is scheduled to close~~ 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 ~~regular weekday closing time~~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”), ~~(B) the Company has instructed~~ it will notify the Agent by ~~telephone~~ email notice (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~electronic mail~~the parties) containing the parameters in accordance with which it desires Shares to ~~make~~ 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 (Cwhich 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 ~~Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum~~ entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on NASDAQ or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ equal to ~~exceed 2.0~~2% of the gross sales price of the Shares for amounts of 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~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ NASDAQ each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNASDAQ. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then 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, the RBC Agreement and the KCM Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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 4 and made in accordance with the terms of the applicable Acceptance will occur on the third business day that is also a trading day for NASDAQ (other than a day on which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made, unless another date shall be agreed to by the Company and the Agent (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any Settlement Date, the Company shall (i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) ~~Notwithstanding any other provision~~ At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the 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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 Company 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 Company shall in no event request that more than one of Agent, RBC or KCM sell shares of Common Stock on the same day; provided, however, that (i) the foregoing limitation shall not apply to sales solely to employees of the Company, the Adviser, the Administrator or their respective affiliates, or to a trustee or other person acquiring such securities for the accounts of such persons and (ii) 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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer or sell any Shares~~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 (ii) with respect to the Company’s annual report filings on Form 10-K, during any period commencing upon the 50th day following the end of the Company’s fiscal year 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 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, 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 the 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, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Prospect Capital Corp)

Sale and Delivery of Shares. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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 ~~the Agent~~one or more Managers, ~~acting~~ as sales agent, and ~~the Agent~~ each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. ~~i. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by~~ (i) Each time that the Company wishes to issue and ~~the Agent~~ 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”), it will instruct one 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”). 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, unless and until (i) the Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum entire amount of the Shares ~~to be sold~~ covered by the Agent daily as previously agreed to in writing or electronic transmission by the Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less Placement Notice have been sold, (ii) ~~any amounts already issued and sold pursuant to~~ in accordance with Section 4(a)(ii) hereof, 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 ~~and~~ has been terminated under the ~~Alternative Equity Distribution Agreements) and the minimum price per Share at which such Shares may be sold~~provisions of Section 10. Subject to the terms and conditions hereof, the ~~Agent~~ applicable Manager shall use its commercially reasonable efforts to offer and sell ~~on a particular day, consistent with its normal trading practices,~~ all of the Shares designated ~~for~~ in the ~~sale by~~ Placement Notice; provided, however, that the ~~Company on such day. The gross sales price of~~ Manager shall have no obligation to offer or sell any Shares, and 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) at the time of 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 no Manager shall have any such obligation in the event an offer or sale of the Shares on behalf of the Company may 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 an “underwriter” under the 1933 Act in a transaction that is other than (A) ~~there can be no assurance~~ 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 ~~Agent will be successful in selling the Shares,~~ 1933 Act or (B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the ~~Agent will incur no liability or obligation~~ transactions described in (A) and (B) are hereinafter referred to as “At the Market Offerings”). (ii) Notwithstanding the foregoing, the Company or the 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 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 Manager may, upon notice to the other party ~~hereto~~ by telephone (confirmed promptly by electronic ~~mail~~mail from such party), suspend the offering of the Shares ~~for any reason and at any time;~~ pursuant to this Agreement or suspend or terminate a previously issued Placement Notice; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. ~~iv. The Agent~~ (iii) Each Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the ~~Company~~ Company, pursuant to this Section ~~3(a~~4(a), other than (A) ~~(1)~~ by means of ~~ordinary brokers’ transactions between members of~~ At the 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 Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the ~~Agent pursuant to a Terms Agreement~~applicable Manager. v. (iv) The compensation to any Manager, as an agent of the ~~Agent~~ Company, 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~~ up to ~~exceed~~ 2.0% of the gross sales price of the Shares sold pursuant to this Section ~~3(a) and payable as described in the succeeding subsection (vi) below~~4(a). The foregoing rate of compensation shall not apply when ~~the Agent~~ such Manager acts as principal, in which case the Company may sell Shares to ~~the Agent~~ such Manager as principal at a price agreed upon at the relevant ~~Applicable Time~~ 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~~ connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). ~~vi.~~ (v) The ~~Agent~~ applicable Manager shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ as soon as practicable following the close of trading on ~~the NYSE~~ NASDAQ each day in which the Shares are sold under this Section ~~3(a~~4(a) setting forth the ~~number~~ aggregate amount of the Shares sold on such day, the aggregate ~~gross sales proceeds and the~~ Net Proceeds to the Company, and the aggregate compensation payable by the Company to ~~the Agent~~ such Manager 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~~. ~~vii.~~ (vi) Settlement for sales of the Shares pursuant to this Section ~~3(a~~4(a) will occur on the ~~third Business~~ second 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 ~~day~~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 Agent~~ a Manager for settlement on such date shall be issued and delivered by the Company to ~~the Agent~~ such Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by ~~free delivery~~ electronically transferring the Shares by the Company or its transfer agent to such Manager’s account, or to the account of the ~~Shares to the Agent~~Manager’s ~~account~~ 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 Company and the Manager, which in all cases shall be freely tradable, transferable, registered shares eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the ~~Company~~ Company, or its transfer agent (if applicable) ), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ applicable Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay ~~the Agent~~ such Manager any commission to which it would otherwise be entitled absent such default. ~~If the Agent breaches this Agreement by failing to deliver the Net Proceeds~~ The Authorized Company Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company ~~on any~~ for all matters related to the settlement of the transfer of the Shares through DWAC for purposes of this Section 4(a)(vi). (vii) At each Time of Sale, Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (as defined in Section ~~4(k)~~5(q) ~~and Filing Date (as defined in Section 4(a)~~hereof), the Company shall be deemed to have affirmed ~~each representation~~ its representations and ~~warranty~~ warranties contained in this ~~Agreement 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~~Agreement. Any obligation of the ~~Agent~~ 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 herein~~Company, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (bi) 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~~4(a) of this ~~Agreement (each, a “Placement”)~~Agreement, it ~~will~~ may elect, in its sole discretion, to notify ~~the Agent~~ one or more Managers of the proposed terms of such ~~Placement~~sale. If ~~the Agent~~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~~ Company, wishes to accept amended terms, ~~the Agent~~ such Manager(s) and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 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 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) ~~Each~~ In the event the Company engages one or more Managers for a sale of ~~the~~ Shares ~~to the Agent shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for~~ that would constitute the sale of ~~such Shares to~~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 ~~purchase thereof by,~~ Manager(s) will agree to compensation that is customary for the ~~Agent. A Terms Agreement may also specify certain provisions relating~~ Manager(s) with respect to ~~the reoffering of~~ such Shares by the Agent. The commitment of the Agent 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 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 (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 Agenttransactions. (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 ~~value~~ gross sales proceeds or the aggregate number of the Shares sold pursuant to this ~~Agreement,~~ Agreement would exceed the ~~Alternative Equity Distribution Agreements and any Terms Agreement exceed~~ lesser of (iA) the Maximum Amount, (iiB) the ~~number of shares of the Common Stock~~ amount available for ~~issuance~~ offer and sale under the currently effective Registration Statement or and (~~iii~~C) the ~~number and aggregate~~ amount ~~of the Shares~~ authorized from time to time to be issued and sold under this Agreement by the ~~Board~~Company’s board of directors, or a duly authorized committee thereof, and notified to the ~~Agent~~ Managers in writing~~. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof,~~ . Under no circumstances shall the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (g) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, cause or request the offer or sale ~~of,~~ 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~~ at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and notified to the Managers in ~~which the Company is, or could be deemed to be, in possession of material non-public information, or~~ writing and (ii) ~~except as provided in Section 3(h) below~~at a price (net of the Managers’ commission, ~~at any time during the period commencing on the seventh Business Day prior to the date (each, an “Announcement Date”) on which~~ discount or other compensation for such sales payable by 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. (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~~4) ~~shall not relieve~~ lower than the Company’s then current net asset value per share (as calculated pursuant to the Investment Company Act), unless the Company has received the requisite approval from ~~any~~ the Company’s board of ~~its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q~~ directors or ~~Annual Report on Form 10-K~~a duly authorized committee thereof, as and notifies the ~~case may be, including, without limitation, the obligation to deliver officers’ certificates, accountants’ letters and legal opinions and letters as provided~~ Managers 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) of Section 3(g), which shall have independent application~~writing.

Appears in 1 contract

Samples: Equity Distribution Agreement (New Mountain Finance Corp)

Sale and Delivery of Shares. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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~~ through or to ~~time through~~ the ~~Agent~~Manager, ~~acting~~ as sales ~~agent~~agent and/or principal, as and when it provides instructions, in its discretion, for the sale of Shares, and the ~~Agent~~ Manager 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 to upon by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the ~~Agent~~ 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 ~~of this Agreement~~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 amount of ~~the~~ Shares to be sold by the ~~Agent~~ Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the ~~currently effective~~ Registration Statement ~~less (ii) any amounts already~~ or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold ~~pursuant to~~ under this Agreement or, together with all sales of Shares under this Agreement and the Alternative ~~Equity~~ Distribution Agreements~~) and~~ , in an amount in excess of the Maximum Amount), any minimum price ~~per Share at~~ below which ~~such~~ sales of Shares may not be ~~sold~~effected and any other limitations specified by the Company and mutually agreed by the Manager. 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~~ ), 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 ~~price~~ for ~~shares~~ 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~~’s Common Stock sold~~ , 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 ~~Agent under this Section 3(a) at the time of 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~~ in any such ~~Shares may be sold). ii~~instruction. ~~The Company acknowledges and agrees that (A) there can be no assurance that the Agent will be successful in selling the Shares~~In addition, ~~(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 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 Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for ~~any reason and at any time~~a specified period (a “Suspension Period”); provided, however, that (A) such ~~suspension or termination~~ 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~~notice and provided, further, that there shall be no obligations under Sections 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. ~~iv.~~ (iii) The ~~Agent~~ Manager 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 ~~ordinary brokers’ transactions between members of~~ At the 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 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 ~~Agent pursuant to a Terms Agreement~~Manager. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company, 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 ~~the~~ any 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 ~~for~~ from the sale of such Shares (the “Net Proceeds”). ~~vi. The Agent~~ (v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by ~~facsimile or~~ electronic mail) ~~to the Company promptly~~ as soon as is reasonably practicable following the close of trading on the NYSE each day in on which ~~the~~ Shares are sold ~~under~~ pursuant to this Section 3(a) setting forth (i) the number of ~~the~~ Shares sold on such day, ~~the aggregate gross sales proceeds and~~ (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of ~~the~~ Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ 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 ~~day~~date, 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 ~~for~~ from the sale of such ~~Shares~~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 ~~Agent~~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 (“~~DTC~~DWAC”) ~~in return for payments in same day funds delivered to the account designated~~ or by such other means of delivery as may be mutually agreed upon by the ~~Company~~parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the ~~Company~~ Company, or its transfer agent (if applicable) ), shall default on upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ 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 ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If The Authorized Company Representatives shall be the ~~Agent breaches this Agreement by failing to deliver~~ contact persons for the ~~Net Proceeds~~ Company for all matters related to the ~~Company on any~~ 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 for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (each, as defined in Section ~~4(k~~2(a), Section 3(a)(vi) and ~~Filing Date (as defined in~~ Section ~~4(a)~~4(p) hereof, respectively), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell ~~the~~ Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company and the Operating Partnership of ~~its~~ their respective obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 ~~of this Agreement~~hereof. (b) 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~~ hereof (each, a “Placement”), it will notify the ~~Agent~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent~~ Company, the Operating Partnership and the ~~Company~~ Manager will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 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 any Terms Agreement, the terms of such Terms Agreement will control. (c) Each sale of the Shares to the Agent 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 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 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 (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 Agent. (di) Under no circumstances shall the aggregate ~~value~~ gross sales proceeds of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the lesser of (iA) the Maximum ~~Amount,~~ Amount and (iiB) the ~~number of shares of the Common Stock~~ amount available for ~~issuance~~ offer and sale under the ~~currently effective~~ Prospectus and the Registration ~~Statement or (iii)~~ Statement, nor shall the ~~number and~~ aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized ~~from time to time~~ to be ~~issued and~~ sold under this Agreement by the ~~Board~~Company’s Board of Directors, or a duly authorized committee thereof, and notified to the ~~Agent~~ Manager in writing~~. (e) Except pursuant to a reoffer of~~ . Further, under no circumstances shall the aggregate gross sales proceeds from Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made sold pursuant to this Agreement together with the Shares sold pursuant to the Alternative Distribution Agreements, including any separate Terms Agreement or an similar agreement covering principal transactions described herein and in the Alternative ~~Equity~~ Distribution ~~Agreement~~Agreements, exceed the Maximum Amount. (fii) If either ~~the Company or the Agent~~ 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~~ 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. (gd) 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 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)~~Manager, shall cancel any instructions for the offer or sale of any Shares, and the ~~Agent~~ Manager shall not be obligated to offer or sell any Shares, : (ix) during any period in which the Company is, or could be deemed to be, in possession of material non-public information, or (iiy) except as provided in clause (ii) of this Section ~~3(h) below~~3(e), ~~at any time during the period commencing on the seventh Business Day~~ from seven calendar days prior to the date (each, an “Announcement Date”) ~~on which~~ of any public announcement or release disclosing the ~~Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other~~ Company’s results of operations ~~(each, an “Earnings Announcement”)~~ or financial condition for a completed quarterly or annual fiscal period 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~~announcement or release. (hii) 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 (i1) prepare and deliver to the ~~Agent~~ Manager (with a copy to ~~counsel to the Agent~~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 ~~Agent~~Manager, and obtain the consent of the ~~Agent~~ Manager to the filing thereof (such consent not to be unreasonably withheld), (ii2) provide the ~~Agent~~ Manager with the ~~officers’~~ certificate, ~~accountants’ letter and opinions and~~ opinions/letters of counsel and Comfort Letter called for by Sections ~~4(k~~4(p), (lq), (mr) and (ns) hereof; , respectively, (~~iii~~3) afford the ~~Agent~~ Manager the opportunity to conduct a due diligence review in accordance with Section ~~4(o~~4(w) hereof and (iv4) file such Earnings 8-K with the Commission, then the provisions of clause (~~iii~~y) of Section ~~3(g~~e(i) 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~~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 purposes of clarity, the parties hereto agree that (A) the delivery of any ~~officers’~~ certificate, ~~accountants’ letter and opinions and~~ opinions/letters of counsel and Comfort Letter pursuant to this Section ~~3(h~~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’~~ opinions/letters of counsel and ~~legal opinions and letters~~ Comfort Letters as provided in Section 4 hereof and (B) this ~~Section 3(h~~clause (ii) shall in no way affect or limit the operation of the provisions of ~~clauses~~ clause (~~i) and (ii~~x) of Section ~~3(g~~3(e)(i), which shall have independent application. (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 (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement unless a Terms Agreement, in form and substance mutually satisfactory to the Company, 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 offer 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 in no event by the Manager and one or more Alternative Managers, and the Company shall in no event request that the Manager and any of the Alternative Managers sell Shares on the same day.

Appears in 1 contract

Samples: Equity Distribution Agreement (QualityTech, LP)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell Shares ~~from time to time~~ through the ~~Agent,~~ applicable Agent acting as sales agent. Sales of the Shares, ~~and the~~ if any, through an Agent ~~agrees to use its reasonable efforts to sell,~~ acting as sales agent ~~for~~ will be made by means of (i) ordinary brokers’ transactions on the ~~Company~~NYSE 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 terms~~TSX or on any Canadian marketplace. i. (b) The Shares are to be sold through an Agent on ~~a daily~~ an agented basis ~~or otherwise as shall be agreed to by the Company and the Agent~~ 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 (Bi) 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), unless the Company 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, and a new appointment of agent for service of process upon the Company on Form F-X, in form and substance satisfactory to the Agents. On any Trading Day, the Company may sell Shares through only one Agent and, if it determines to do so, shall instruct the applicable Agent by telephone (confirmed promptly by ~~electronic mail~~telecopy or email, which confirmation will be promptly acknowledged by such Agent) as to ~~make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate~~ the maximum ~~amount~~ number of ~~the~~ Shares to be sold by the Agent daily as previously agreed to in writing or electronic transmission by the Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) on such Trading Day and the minimum price per Share at which such Shares may be sold. It is expressly acknowledged that no Agent shall have any obligation to purchase Shares as principal, whether from the Company or otherwise. Subject to the terms and conditions ~~hereof~~specified herein (including, without limitation, the accuracy of 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 5 hereof), such Agent shall use its commercially reasonable ~~efforts to sell on a particular day~~efforts, 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) at the time of 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 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 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~~ regulations, to sell all of the 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 ~~under~~ by this Agreement. (c) Each of the Agents hereby covenants and agrees that, if and when an Agent has received an instruction to make sales pursuant to Section 2(b) above (Can “Agency Transaction Instruction”) that has not been declined, suspended or terminated in accordance with the terms hereof, such Agent ~~shall be under no obligation~~ will prudently and actively monitor the market’s reaction to ~~purchase Shares~~ trades made on ~~a principal basis~~ any “marketplace” (as such term is defined in NI 21-101) pursuant to this ~~Agreement~~Agreement in order to evaluate the likely market impact of future trades, ~~except~~ and that, if such Agent has concerns as ~~otherwise specifically agreed by~~ to whether a particular sale may have a significant effect on the market price of the Common Shares, the applicable Agent will immediately recommend to the Company against effecting the trade at that time or on the terms proposed. Notwithstanding the foregoing, the Company acknowledges and agrees that the ~~Company~~Agents cannot provide complete assurances that any sale will not have a significant effect on the market price of the Common Shares. 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.~~ d) The Company or the 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 mail~~telecopy 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 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~~ sold, or with respect to Shares that the Company has agreed to sell, hereunder prior to the giving of such notice. ~~iv.~~ (e) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ applicable Agent acting 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 ~~agreed~~ 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 ~~Company and the Agent pursuant~~ U.S. Agents, otherwise at prices related to ~~a Terms Agreement. v.~~ prevailing market prices or negotiated prices. The aggregate compensation payable to the ~~Agent~~ Agents for sales of ~~the~~ Shares with respect to which ~~the Agent~~ one or more Agents acts as sales agent ~~under this Agreement~~ shall be ~~at a mutually agreed rate, not~~ set forth in the instruction provided pursuant to ~~exceed 2.0~~section 2(b) for such transaction and shall be up to 2.00% of the gross sales price of for such Shares (the ~~Shares sold pursuant to this Section 3(a) and~~ “Agents’ Commission”), payable ~~as described~~ in ~~the succeeding subsection (vi) below~~U.S. dollars. 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, gross proceeds after ~~further~~ deduction for any transaction fees, transfer taxes or similar taxes or fees imposed ~~on the Agent~~ 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 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 ~~Shares (the “Net Proceeds”)~~Agent that is customary for such sales. ~~vi. The~~ (f) If acting as sales agent hereunder, the applicable Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on the NYSE or the TSX, as applicable, on each ~~day in~~ Trading Day on which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds of the Shares, the Agents’ Commission and the ~~Net~~ 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 ~~the compensation payable~~ 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 ~~Agent~~ Agents in writing. Under no circumstances shall any Shares with respect to ~~such sales. Such compensation shall~~ which an Agent acts as sales agent be ~~set forth and invoiced in periodic statements~~ 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 minimum price therefor duly authorized from ~~the Agent~~ time to ~~the Company, with payment to be made~~ time by the Company ~~promptly after its receipt thereof~~and notified to the 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 Shares 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. ~~vii~~(h) 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 ~~the~~ Shares ~~pursuant to this Section 3(a)~~ will occur on the ~~third Business~~ second business day that is also a 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 day, a “Settlement Date”). On each Settlement ~~Date~~Date for the sale of Shares through an Agent as sales agent, ~~the~~ such Shares ~~sold through the Agent for settlement on such date~~ shall be ~~issued and~~ 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 ~~for~~ from the sale of such ~~Shares. Settlement for all such~~ Shares ~~shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments~~ in same day funds delivered to ~~the~~ an account designated by the Company. If the Company (or its transfer ~~agent (if applicable~~agent) shall default 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~~ such Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay ~~the~~ such Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (gj) Notwithstanding any other provision of this Agreement, the Company shall not ~~offer, sell~~ offer or ~~deliver~~sell, or ~~request the~~ instruct an Agent to offer or ~~sale of~~sell, any Shares through an Agent as sales agent (and, by notice to the ~~Agent~~ Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for ~~the~~ any such offer or sale of any ~~Shares~~Shares prior to the commencement of the periods referenced below), and the ~~Agent~~ Agents shall not be obligated to make any such offer or ~~sell any~~ 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,~~ information or (ii) except as provided in Section ~~3(h~~2(k) ~~below~~hereof, at any time during the period commencing on the ~~seventh Business Day~~ 10th business day prior to the ~~date (each, an “Announcement Date”) on which~~ time the Company ~~shall issue~~ issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating 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 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”) ~~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 fiscal period or periods, as the case may be, covered by such Earnings Announcement. (hk) If Notwithstanding clause (ii) of Section 2(j) hereof, if the Company wishes to ~~offer,~~ offer or sell ~~or deliver~~ Shares through an Agent as sales agent at any time during the period from and including an Earnings Announcement ~~Date~~ through and including ~~the time that is 24 hours after~~ the corresponding Filing Time, the Company shall first (i) prepare and deliver to ~~the~~ such Agent (with a copy to counsel to for the ~~Agent~~Agents) a ~~Current Report~~ current report on Form 86-K ~~which shall include~~ that includes substantially the same financial and related information as (together with management’s discussion and analysis thereof) that was ~~set forth~~ included in ~~the relevant~~ such Earnings Announcement (other than any earnings ~~projections,~~ projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 86-K”), in form and substance reasonably satisfactory to ~~the~~ such Agent, ~~and~~ and, prior to its filing, obtain the written consent of ~~the~~ such Agent to ~~the~~ such filing ~~thereof~~ (~~such~~ which consent shall not to be unreasonably withheld), (ii) provide ~~the~~ such Agent with the officers’ certificate, ~~accountants’ letter and~~ opinions and letters of counsel ~~called for by Sections 4(k~~and accountants’ letter specified in Section 3(n), (l3(o) and 3(p), ~~(m) and (n)~~ respectively, hereof~~; respectively~~, (iii) afford ~~the~~ such Agent the opportunity to conduct a due diligence review in accordance with Section ~~4(o~~3(s) hereof prior to filing such Earnings 6-K and (iv) file such Earnings 86-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, opinion or letter of counsel or accountants’ letter ~~and opinions and letters of counsel~~ pursuant to this Section ~~3(h~~2(k) shall not relieve the Company from any of its obligations under this Agreement with respect to any ~~Quarterly Report~~ quarterly report or quarterly financial statements, annual information form or annual financial statements/annual report on Form 1040-~~Q or Annual Report on Form 10-K~~F, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ ~~letters and legal opinions and~~ letters as provided in Section ~~4 hereof~~ 3(n), 3(o) and 3(p), respectively, hereof, and (B) this Section ~~3(h~~2(k) shall in no way affect or limit the operation of ~~the provisions of clauses~~ clause (i) ~~and (ii)~~ of Section ~~3(g)~~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 NI 44-102) or effect any other transactions that are intended to stabilize or maintain the market price of the Common Shares in connection with such distribution.

Appears in 1 contract

Samples: Atm Equity Offering Sales Agreement (Wheaton Precious Metals Corp.)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales ~~agent,~~ agent and the 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. i. 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 (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 agreed to by the Company and the 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~~ 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 ~~which the NYSE is scheduled to close~~ 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 ~~regular weekday closing time~~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”), ~~(B) the Company has instructed~~ it will notify the Agent by ~~telephone~~ email notice (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~electronic mail~~the parties) containing the parameters in accordance with which it desires Shares to ~~make~~ 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 (Cwhich 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 ~~Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum~~ entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on NASDAQ or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ equal to ~~exceed 2.0~~2% of the gross sales price of the Shares for amounts of 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~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ NASDAQ each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNASDAQ. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then 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, the RBC Agreement and the BMO Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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 4 and made in accordance with the terms of the applicable Acceptance will occur on the third business day that is also a trading day for NASDAQ (other than a day on which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made, unless another date shall be agreed to by the Company and the Agent (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any Settlement Date, the Company shall (i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) ~~Notwithstanding any other provision~~ At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the 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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 Company 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 Company shall in no event request that more than one of Agent, RBC or BMO sell shares of Common Stock on the same day; provided, however, that (i) the foregoing limitation shall not apply to sales solely to employees of the Company, the Adviser, the Administrator or their respective affiliates, or to a trustee or other person acquiring such securities for the accounts of such persons and (ii) 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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer or sell any Shares~~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 (ii) with respect to the Company’s annual report filings on Form 10-K, during any period commencing upon the 50th day following the end of the Company’s fiscal year 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 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, 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 the Company agree that no sales of Shares shall take place for the period beginning on the date of the 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, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Prospect Capital Corp)

Sale and Delivery of Shares. (a) 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 ~~Agent~~Managers, acting as sales ~~agent~~agents, and ~~the Agent~~ each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the ~~following terms~~terms 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. (i) The Shares are to be sold by one of the Managers on a daily basis or otherwise as shall be agreed to by the Company and the ~~Agent~~ 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 has instructed ~~the Agent~~ such Manager by telephone ~~(confirmed promptly~~ or by electronic ~~mail)~~ mail to make such sales and (C) the Company has satisfied its obligations under Section 6 of 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 the maximum amount of the Shares to be sold by ~~the Agent~~ such Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by ~~the Agent~~ such Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, ~~the Agent~~ such Manager shall use its commercially reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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 ~~Agent~~ Selling Manager under this Section 3(a) on the Nasdaq at the time of 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)~~Shares. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that ~~the Agent~~ any Manager will be successful in selling the Shares, (B) ~~the Agent~~ no 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 Agent~~ such Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this ~~Agreement,~~ Agreement and (C) ~~the Agent~~ no Manager shall be under no any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by ~~the Agent~~ such Manager and the ~~Company~~Company pursuant to a Terms Agreement. (iii. ) The Company shall not authorize the issuance and sale of, and ~~the Agent~~ no 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 the ~~Agent~~ Managers in writing. The Company or ~~the Agent~~ any Manager may, upon notice to the other party 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. The Managers shall have no responsibility for maintaining records with respect to the 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. (iv. ) The ~~Agent hereby covenants and agrees not~~ Managers may sell shares in negotiated transactions, including block trades, or transactions that are deemed to ~~make any~~ be ‘‘at the market’’ offerings as defined in Rule 415 under the Securities Act of 1933, as amended, or the Securities Act, including sales ~~of the Shares on behalf of the Company pursuant to this Section 3(a), other than (A) (1)~~ made by 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 as “Continuous Offerings”)transactions, ~~(2)~~ including directly on Nasdaq, or sales made to or through a market ~~maker~~maker other than on an exchange at prevailing market prices, at prices related to prevailing market prices or ~~(3) directly on~~ at negotiated prices or ~~through~~ by 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 method permitted by law. No Manager shall purchase Shares ~~on behalf of the Company in~~ for its ~~capacity~~ own account as ~~agent of the Company as shall be agreed~~ principal unless expressly authorized to do so by the Company ~~and the Agent~~ pursuant to a Terms Agreement. v. (v) The compensation to the ~~Agent~~ Selling Manager, as agent of the Company, for sales of the Shares ~~with respect to which the Agent acts as sales agent under this Agreement~~ hereunder shall be ~~at a mutually agreed rate, not~~ equal to ~~exceed 2.0~~2.5 % of the gross sales price of 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 ~~the Agent~~ any Manager acts as principal, in which case the Company may sell Shares to ~~the Agent~~ 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 ~~on the Agent~~ by any governmental or self-regulatory organization in respect of such ~~sales~~sales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi~~. The Agent~~ ) Each Selling Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company ~~promptly~~ following the close of trading on the ~~NYSE~~ 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 to the Company, and the compensation payable by the Company to ~~the Agent~~ such Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the ~~Agent~~ applicable Selling Manager to the Company, with payment to be made by the Company promptly after its receipt thereof. (vii~~. Settlement~~ ) Until May 28, 2024, settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business~~ second business day that is also a 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 day, a “Settlement Date”). On each Settlement Date, the Shares sold through ~~the Agent~~ a Manager for settlement on such date shall be issued and delivered by the Company to ~~the Agent~~ such Manager against payment of the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to ~~the Agent~~such Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold ~~the Agent~~ such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay ~~the Agent~~ such Manager any commission to which it would otherwise be entitled absent such default. If ~~the Agent~~ a Manager breaches this Agreement by failing to deliver the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees to the Company on any Settlement Date for the Shares delivered by the Company, ~~the Agent~~ such Manager will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to ~~the Agent~~such Manager. (viii. ) At each Applicable Time, Settlement ~~Date,~~ Date and Representation Date (as defined in Section ~~4(k~~4(j)~~) and Filing Date (as defined in Section 4(a~~)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent~~ any Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of 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 ~~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~~ a Manager of the proposed terms of such Placement. If ~~the Agent~~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 Agent~~ such Manager and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 Agent~~ such Manager unless and until the Company and ~~the Agent~~ 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 ~~the Agent~~ 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, ~~the Agent~~such Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by ~~the Agent~~such Manager. The commitment of the ~~Agent~~ 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 ~~Agent~~ 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 Agent~~ 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 the ~~Agent~~applicable Manager. (d) Under no circumstances shall the number and aggregate ~~value~~ amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) the ~~Maximum Amount~~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 ~~Agent~~ Managers in writing. (e) ~~Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that~~ If any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either the Company or the Agent 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. (gf) Notwithstanding any other provision of this ~~Agreement,~~ 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~~Shares that would be sold, and ~~the Agent~~ no Manager shall ~~not~~ be obligated to ~~offer or sell any Shares~~sell, ~~(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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Soundhound Ai, Inc.)

Sale and Delivery of Shares. (a) 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 the ~~Agent~~Manager, acting as sales agent, and the ~~Agent~~ Manager agrees to use its 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 agreed to by the Company and the ~~Agent~~ 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 has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the ~~Agent~~ Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its ~~commercially~~ reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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 ~~Agent~~ Manager under this Section 3(a) on the Nasdaq at the time of 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)~~Shares. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Manager will be successful in selling the Shares, (B) the ~~Agent~~ Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this ~~Agreement,~~ Agreement and (C) the ~~Agent~~ Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Manager and the Company. (iii. ) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ 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 ~~Agent~~ Manager in writing. The Company or the ~~Agent~~ Manager may, upon notice to the other party 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. (iv. ) The ~~Agent~~ Manager 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 ordinary brokers’ transactions between members of ~~the NYSE~~ Nasdaq that qualify for delivery of a ~~Prospectus~~ prospectus to Nasdaq 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 agreed by the Company and the ~~Agent~~ Manager pursuant to a Terms Agreement. v. (v) The compensation to the ~~Agent~~ Manager for sales of the Shares with respect to which the ~~Agent~~ Manager acts as sales agent under this Agreement shall be ~~at a mutually agreed rate, not to exceed 2.0~~2% of the gross sales price of 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~~ Manager acts as principal, in which case the Company may sell Shares to the ~~Agent~~ 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 ~~on the Agent~~ by any governmental or self-regulatory organization in respect of such ~~sales~~sales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi. ) The ~~Agent~~ Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ 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 to the ~~Company,~~ Company and the compensation payable by the Company to the ~~Agent~~ Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the ~~Agent~~ Manager to the Company, with payment to be made by the Company promptly after its receipt thereof. (vii. ) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If the ~~Agent~~ Manager breaches this Agreement by failing to deliver the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees to the Company on any Settlement Date for the Shares delivered by the Company, the ~~Agent~~ Manager will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the ~~Agent~~Manager. (viii. ) At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section ~~4(a~~4(x)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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 ~~Agent~~ Manager and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Manager unless and until the Company and the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Manager. The commitment of the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~ Manager in the reoffering of the ~~Shares,~~ Shares and the ~~time and~~ 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 ~~Agent~~Manager. (d) Under no circumstances shall the number and aggregate ~~value~~ amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) the ~~Maximum Amount~~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 ~~Agent~~ Manager in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either ~~the Company or the Agent~~ 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. (gf) Notwithstanding any other provision of this ~~Agreement,~~ 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~~Shares that would be sold, and the ~~Agent~~ Manager shall not be obligated to ~~offer or sell any Shares~~sell, (i) during any period in which the Company is, or could be deemed to be, in possession of material non-public ~~information,~~ information or (ii) except as provided in Section ~~3(h~~3(g) ~~below~~hereof, at any time ~~during the period commencing on the seventh Business Day prior to~~ from and including the date ~~(each, an “Announcement Date”)~~ on which the Company ~~shall issue~~ 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 “Filing Time”)~~ a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement. (hg) If the Company wishes to ~~offer,~~ offer or sell ~~or deliver~~ Shares at any time during the period from and including an Earnings Announcement ~~Date~~ through and including the time that is 24 hours after the corresponding Filing Time, the Company shall first (i) prepare and deliver to the ~~Agent~~ Manager (with a copy to counsel to the ~~Agent~~Manager) a Current Report on Form 8-K ~~which shall include~~ that includes substantially the same financial and related information as that was ~~set forth~~ included in ~~the relevant~~ such Earnings Announcement (other than any earnings ~~projections,~~ projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the ~~Agent~~Manager and, ~~and~~ prior to its filing, obtain the consent of the ~~Agent~~ Manager to ~~the~~ such filing ~~thereof~~ (~~such~~ which consent shall not to be unreasonably withheld), (iiiii) provide the ~~Agent~~ Manager with the officers’ certificate, ~~accountants’ letter and~~ opinions and letters of counsel ~~called for by~~ and accountants’ letter specified in Sections ~~4(k), (l~~4(l), (m) and (n~~) hereof;~~ ), respectively, hereof, (~~iii~~iv) afford the ~~Agent~~ Manager the opportunity to conduct a due diligence review in accordance with Section 4(o) hereof prior to filing such Earnings 8-K and (ivv) file such Earnings 8-K with the Commission, then the ~~provisions~~ provision of clause (~~iii~~ii) of Section ~~3(g~~3(f) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter ~~and opinions and letters of counsel~~ pursuant to this Section ~~3(h~~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 and legal opinions and~~ letters as provided in ~~Section 4 hereof~~ Sections 4(l), (m) and (n),, respectively, hereof, and (B) this Section ~~3(h~~3(f)(1) shall in no way affect or limit the operation of ~~the provisions of clauses~~ clause (i) ~~and (ii) of~~ in the paragraph above in this Section ~~3(g~~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) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales ~~agent,~~ agent and the 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. i. 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 (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 agreed to by the Company and the 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~~ 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 ~~which the NYSE is scheduled to close~~ 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 ~~regular weekday closing time~~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”), ~~(B) the Company has instructed~~ it will notify the Agent by ~~telephone~~ email notice (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~electronic mail~~the parties) containing the parameters in accordance with which it desires Shares to ~~make~~ 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 (Cwhich 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 ~~Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum~~ entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on NASDAQ or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ equal to ~~exceed 2.0~~2% of the gross sales price of the Shares for amounts of 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~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ NASDAQ each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNASDAQ. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then 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, the Barclays Agreement, the RBC Agreement and the KeyBanc Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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 4 and made in accordance with the terms of the applicable Acceptance will occur on the third business day that is also a trading day for NASDAQ (other than a day on which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made, unless another date shall be agreed to by the Company and the Agent (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any Settlement Date, the Company shall (i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) ~~Notwithstanding any other provision~~ At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the 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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 Company pursuant to this Agreement shall only be effected by or through only one of Agent, Barclays, RBC or KeyBanc on any single given day, but in no event by more than one of them, and the Company shall in no event request that more than one of Agent, Barclays, RBC or KeyBanc sell shares of Common Stock on the same day; provided, however, that (i) the foregoing limitation shall not apply to sales solely to employees of the Company, the Adviser, the Administrator or their respective affiliates, or to a trustee or other person acquiring such securities for the accounts of such persons and (ii) 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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer or sell any Shares~~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 (ii) with respect to the Company’s annual report filings on Form 10-K, during any period commencing upon the 50th day following the end of the Company’s fiscal year 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 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, 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 the 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, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Prospect Capital Corp)

Sale and Delivery of Shares. (a) 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 the ~~Agent~~Manager, acting as sales agent, and the ~~Agent~~ Manager agrees to use its 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 agreed to by the Company and the ~~Agent~~ 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 has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the ~~Agent~~ Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its ~~commercially~~ reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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 ~~Agent~~ Manager under this Section 3(a) on the Nasdaq at the time of 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)~~Shares. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Manager will be successful in selling the Shares, (B) the ~~Agent~~ Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the ~~Agent~~ Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Manager and the Company. (iii. ) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ 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 ~~Agent~~ Manager in writing. The Company or the ~~Agent~~ Manager may, upon notice to the other party 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. (iv. ) The ~~Agent~~ Manager 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 ordinary brokers’ transactions between members of the ~~NYSE~~ Nasdaq that qualify for delivery of a Prospectus to the Nasdaq in accordance with Rule 153 ~~under the Act~~ (such transactions are hereinafter referred to as “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 agreed by the Company and the ~~Agent~~ Manager pursuant to a Terms Agreement. v. (v) The compensation to the ~~Agent~~ Manager for sales of the Shares with respect to which the ~~Agent~~ Manager acts as sales agent under this Agreement shall be ~~at a mutually agreed rate, not~~ up to ~~exceed 2.0~~3.0% of the gross sales price of 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~~ Manager acts as principal, in which case the Company may sell Shares to the ~~Agent~~ 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 ~~on the Agent~~ by any governmental or self-regulatory organization in respect of such ~~sales~~sales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi. ) The ~~Agent~~ Manager shall provide written confirmation (which may be by ~~facsimile or~~ electronic mail) to the Company ~~promptly~~ following the close of trading on the ~~NYSE~~ 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 to the Company, and the compensation payable by the Company to the ~~Agent~~ Manager 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~~. (vii. ) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If the ~~Agent~~ Manager breaches this Agreement by failing to deliver the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees to the Company on any Settlement Date for the Shares delivered by the Company, the ~~Agent~~ Manager will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the ~~Agent~~Manager. (viii. ) At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section ~~4(a~~4(x)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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 ~~Agent~~ Manager and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Manager unless and until the Company and the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Manager. The commitment of the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~Manager. (d) Under no circumstances shall the number and aggregate ~~value~~ amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) the ~~Maximum Amount~~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 ~~Agent~~ Manager in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either ~~the Company or the Agent~~ 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. (gf) Notwithstanding any other provision of this ~~Agreement,~~ 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~~Shares that would be sold, and the ~~Agent~~ Manager shall not be obligated to ~~offer or sell any Shares~~sell, ~~(i)~~ during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists at the Execution Time, would prohibit 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, 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Windstream Holdings, Inc.)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales ~~agent,~~ agent and the 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. i. 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 (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 agreed to by the Company and the 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~~ 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 ~~which the NYSE is scheduled to close~~ 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 ~~regular weekday closing time~~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”), ~~(B) the Company has instructed~~ it will notify the Agent by ~~telephone~~ email notice (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~electronic mail~~the parties) containing the parameters in accordance with which it desires Shares to ~~make~~ 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 (Cwhich 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 ~~Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum~~ entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on NASDAQ or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ equal to ~~exceed 2.0~~2% of the gross sales price of the Shares for amounts of 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~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ NASDAQ each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNASDAQ. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then 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, the RBC Agreement, the KeyBanc Agreement and the BB&T Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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 4 and made in accordance with the terms of the applicable Acceptance will occur on the third business day that is also a trading day for NASDAQ (other than a day on which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made, unless another date shall be agreed to by the Company and the Agent (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any Settlement Date, the Company shall (i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) ~~Notwithstanding any other provision~~ At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the 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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 Company pursuant to this Agreement shall only be effected by or through only one of Agent, RBC, KeyBanc or BB&T on any single given day, but in no event by more than one of them, and the Company shall in no event request that more than one of Agent, RBC, KeyBanc or BB&T sell shares of Common Stock on the same day; provided, however, that (i) the foregoing limitation shall not apply to sales solely to employees of the Company, the Adviser, the Administrator or their respective affiliates, or to a trustee or other person acquiring such securities for the accounts of such persons and (ii) 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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer or sell any Shares~~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 (ii) with respect to the Company’s annual report filings on Form 10-K, during any period commencing upon the 50th day following the end of the Company’s fiscal year 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 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, 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 the 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, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Prospect Capital Corp)

Sale and Delivery of Shares. (a) ~~Subject~~ Upon the basis of the representations and warranties and subject to the terms and conditions ~~and in reliance upon the representations and warranties~~ herein set forth, the Company agrees to issue and sell to the respective Underwriters, and each of the Underwriters, severally and not jointly, agrees to purchase from the Company the number of Firm Shares set forth opposite the name of such Underwriter in Schedule A attached hereto, subject to adjustment in accordance with Section 7 hereof at a purchase price of $9.45 per Share, less an amount per Share equal to any dividends or other distributions declared by the Company and payable on the Firm Shares but not payable on the Additional Shares. The Company is advised by the Representatives that the Underwriters will (i) make a public offering of their respective portions of the Firm Shares as soon after the effectiveness of this Agreement as in the Representatives’ judgment is advisable and (ii) initially offer the Firm Shares upon the terms and conditions set forth in the Prospectus. The Representatives may from time to time ~~through~~ increase or decrease the Agent, acting as sales agent, and the Agent agrees to use its reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. i. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount public offering price of the Shares after the initial public offering to ~~be sold by~~ such extent as the ~~Agent daily as previously agreed~~ Representatives may determine. (b) In addition, the Company grants to ~~in writing or electronic transmission by~~ the ~~Agent~~ several Underwriters the option (~~in any event not in excess~~ the “Additional Shares Option”) to purchase, and upon the basis of ~~(i)~~ the ~~amount available for issuance under the Prospectus~~ representations and ~~the currently effective Registration Statement less (ii) any amounts already issued~~ warranties and ~~sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) and the minimum price per Share at which such Shares may be sold. Subject~~ subject to the terms and conditions ~~hereof~~herein set forth, the ~~Agent~~ Underwriters shall ~~use its commercially reasonable efforts~~ have the right to ~~sell on a particular day~~purchase, ~~consistent~~ severally and not jointly, from the Company ratably in accordance with ~~its normal trading practices~~the number of Firm Shares to be purchased by each of them, all or a portion of the Additional Shares ~~designated for~~ at the ~~sale~~ same purchase price per share to be paid 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) at the time of 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 the Agent will be successful in selling the Shares, (B) the Agent will incur no liability or obligation Underwriters to the Company ~~or any other person or entity if it does not sell~~ for the Firm Shares. The Additional Shares ~~for any reason other than a failure~~ Option may be exercised by the ~~Agent to use its commercially reasonable efforts consistent with its normal trading~~ Representatives on behalf of the several Underwriters at any time 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 on or before the thirtieth day following the date of this Agreement 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~~ 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~~any such date and time being herein referred to as an “Additional Time of Purchase”)~~, 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~~ no Additional Time of such notice. iv. The Agent 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) (1) by 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 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 Purchase shall be ~~agreed by~~ earlier than the ~~Company and~~ Time of Purchase (as defined below) or later than the Agent pursuant to a Terms Agreement. v. The compensation to the 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 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, tenth business day 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 for such Shares (the “Net Proceeds”). vi. The Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which ~~such sales are made (~~the Additional Shares Option shall have been exercised. The number of Additional Shares to be sold to each ~~such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date~~ Underwriter shall be ~~issued and delivered by~~ the ~~Company~~ number which bears the same proportion to the ~~Agent against payment~~ 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 to adjustment in accordance with Section 7 hereof). (c) Payment of the ~~Net Proceeds~~ purchase price for the ~~sale of such Shares. Settlement for all such~~ Firm Shares shall be ~~effected~~ made to the Company by ~~free~~ Federal Funds wire transfer against delivery of the certificates or security entitlements in respect of the Firm Shares to the ~~Agent’s account at~~ Representatives through the facilities of The Depository Trust Company (“DTC”) ~~in return~~ for ~~payments in same day funds delivered~~ 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 (unless another time shall be agreed to ~~the account designated~~ by the ~~Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify~~ Representatives and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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 Agent shall be made postponed in accordance with the ~~terms~~ provisions 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 Agent. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the AgentSection 7 hereof). The ~~commitment of the Agent to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations~~ time at which such payment 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~~ delivery are 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 (each such time and date being made is herein referred to ~~herein~~ as a the “Time of ~~Delivery”)~~ Purchase.” Electronic transfer of the Firm Shares shall be made to the Representatives at the Time of Purchase in such names and ~~place of delivery of and payment for~~ in such ~~Shares. Such Terms Agreement~~ denominations as the Representatives 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 Agentspecify. (d) ~~Under no circumstances shall the aggregate value~~ Payment of the purchase price for the Additional Shares ~~sold pursuant to this Agreement,~~ shall be made at the ~~Alternative Equity Distribution Agreements~~ Additional Time of Purchase in the same manner and ~~any Terms Agreement exceed (i)~~ at the ~~Maximum Amount, (ii)~~ same office and time of day as the ~~number of shares~~ payment for the Firm Shares. Electronic transfer of the ~~Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the~~ Additional Shares ~~authorized from time to time to~~ shall be ~~issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified~~ made to the ~~Agent~~ Representatives at the Additional Time of Purchase in ~~writing~~such names and in such denominations as the Representatives shall specify. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one Each of the ~~Agent or an Alternative Agent on any single given day, but in no event by more than one,~~ Representatives individually and ~~the Company shall in no event request that the Agent and any~~ not as representatives of the ~~Alternative Agents sell Shares on the same day; provided~~Underwriters, ~~however, that~~ may (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 but shall not be obligated ~~to offer~~ to) make payment of the purchase price for the Firm Shares or ~~sell any~~ the Additional Shares, ~~(i) during~~ if any, to be purchased by any ~~period in which~~ Underwriter whose funds have not been received by the ~~Company is,~~ Time of Purchase or ~~could be deemed to be, in possession~~ any applicable Additional Time 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 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 periodsPurchase, as the case may be, ~~covered by~~ but such ~~Earnings Announcement~~payment shall not relieve such Underwriter from its obligations hereunder. (hf) If Deliveries of 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 documents described in Section 5 hereof with respect 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 purchase of the ~~Agent to~~ Shares shall be made at the ~~filing thereof (such consent not to be unreasonably withheld)~~offices of Xxxxxx & Xxxxxxx LLP at 000 Xxxx Xxxxxx, ~~(ii) provide~~ Xxxxx 0000, Xxxxxxx, Xxxxx 00000, at 9:00 A.M., New York City time, at the ~~Agent with the officers’ certificate, accountants’ letter and opinions and letters~~ Time 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 (orPurchase and, if ~~later~~applicable, ~~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~~ any Additional Time of ~~the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K~~Purchase, 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Underwriting Agreement (Contango Oil & Gas Co)

Appears in 1 contract

Samples: Equity Distribution Agreement (Avis Budget Group, Inc.)

Sale and Delivery of Shares. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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 the ~~Agent~~Manager, ~~acting~~ as sales agent, and the ~~Agent~~ Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. ~~i. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by~~ (i) Each time that the Company wishes to issue and ~~the Agent~~ 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”), 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”). 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, unless and until (i) the Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum entire amount of the Shares ~~to be sold~~ covered by the Agent daily as previously agreed to in writing or electronic transmission by the Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less Placement Notice have been sold, (ii) ~~any amounts already issued and sold pursuant to~~ in accordance with Section 3(a)(ii) hereof, 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 ~~and~~ has been terminated under the ~~Alternative Equity Distribution Agreements) and the minimum price per Share at which such Shares may be sold~~provisions of Section 9. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its commercially reasonable efforts to offer and sell ~~on a particular day, consistent with its normal trading practices,~~ all of the Shares designated ~~for~~ in the ~~sale by~~ Placement Notice; provided, however, that the ~~Company on such day. The gross sales price of~~ Manager shall have no obligation to offer or sell any Shares, and 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) at the time of 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 the Manager shall have no such obligation in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the 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 an “underwriter” under the 1933 Act in a transaction that is other than (A) ~~there can be no assurance~~ by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the ~~Agent will be successful~~ NYSE in ~~selling~~ accordance with Rule 153 under the ~~Shares,~~ 1933 Act or (B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the ~~Agent will incur no liability or obligation~~ transactions described in (A) and (B) are hereinafter referred to as “At the Market Offerings”). (ii) Notwithstanding the foregoing, 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 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 Manager may, upon notice to the other party ~~hereto~~ by telephone (confirmed promptly by electronic ~~mail~~mail from such party), suspend the offering of the Shares ~~for any reason and at any time~~pursuant to this Agreement or suspend or terminate a previously issued Placement Notice; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. ~~iv.~~ (iii) The ~~Agent~~ Manager 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 ~~ordinary brokers’ transactions between members of~~ At the 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 Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the ~~Agent pursuant to a Terms Agreement~~Manager. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company, 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~~ up to ~~exceed 2.0~~1.0% of the gross sales price of 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~~ Manager acts as principal, in which case the Company may sell Shares to the ~~Agent~~ Manager as principal at a price agreed upon at the relevant ~~Applicable Time~~ 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~~ connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). ~~vi.~~ (v) The ~~Agent~~ Manager shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ as soon as practicable following the close of trading on the NYSE each day in which the Shares are sold under this Section 3(a) setting forth the ~~number~~ aggregate amount of the Shares sold on such day, the aggregate ~~gross sales proceeds and the~~ Net Proceeds to the Company, and the aggregate compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business~~ second 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 ~~day~~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 ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by ~~free delivery~~ electronically transferring the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the ~~Shares to the Agent~~Manager’s ~~account~~ 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 Company and the Manager, which in all cases shall be freely tradable, transferable, registered shares eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the ~~Company~~ Company, or its transfer agent (if applicable) ), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. ~~If the Agent breaches this Agreement by failing to deliver the Net Proceeds~~ The Authorized Company Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company ~~on any~~ 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 for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (as defined in Section ~~4(k)~~4(q) ~~and Filing Date (as defined in Section 4(a)~~hereof), the Company shall be deemed to have affirmed ~~each representation~~ its representations and ~~warranty~~ warranties contained in this ~~Agreement 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~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the ~~Company herein~~Company, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 5 of this Agreement. (bi) 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”)~~or as set forth in Section 3(a) of any Alternative Equity Distribution Agreement, it ~~will~~ may elect, in its sole discretion, to notify the ~~Agent~~ Manager of the proposed terms of such ~~Placement~~sale. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent and~~ Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 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 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 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 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 promptly calculate and provide in writing to the Company a report setting forth, for the prior week, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock. (e) Each sale of the Shares to or through the ~~Agent~~ Manager or any Alternative Manager, as applicable, shall be made in accordance with the terms of this Agreement ~~and~~or, if applicable, a Terms Agreement, ~~which will provide for~~ or the ~~sale of such Shares to~~respective Alternative Equity Distribution Agreement or, ~~and the purchase thereof by~~if applicable, ~~the Agent. A~~ an Alternative Terms ~~Agreement may also specify certain provisions relating to the reoffering of such Shares by the Agent~~Agreement, as applicable. The commitment of the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~ 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 (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~~ 5 hereof and any other information or documents required by the ~~Agent~~Manager. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Main Street Capital CORP)

Sale and Delivery of Shares. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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~~ through or to ~~time through~~ the ~~Agent~~Manager, ~~acting~~ as sales ~~agent~~agent and/or principal, as and when it provides instructions, in its discretion, for the sale of Shares, and the ~~Agent~~ Manager 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 to upon by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the ~~Agent~~ 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 ~~of this Agreement~~hereof. The Company will designate in a notice delivered by electronic mail to the Manager substantially in the form attached hereto as Schedule C the maximum amount of ~~the~~ Shares to be sold by the ~~Agent~~ Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the ~~currently effective~~ Registration Statement ~~less (ii) any amounts already~~ or in an amount in excess of the amount of Shares authorized from time to time to be issued and sold ~~pursuant to~~ under this Agreement or, together with all sales of Shares under this Agreement and the Alternative ~~Equity~~ Distribution ~~Agreements) and~~ Agreement, in an amount in excess of the Maximum Amount), any minimum price ~~per Share at~~ below which ~~such~~ sales of Shares may not be ~~sold~~effected and any other limitations specified by the Company and mutually agreed by the Manager. Subject to the terms and conditions ~~hereof~~of this Section 3(a), the ~~Agent~~ 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 time of sale, at prices related to prevailing market prices or at negotiated prices. Subject to the terms and conditions of this Section 3(a), the Manager shall use its commercially reasonable efforts to offer and sell ~~on a particular day, consistent with its normal trading practices,~~ as sales agent 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) at the time of 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 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 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 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 any reason and at any timedesignated; provided, however, that ~~such suspension~~ the Manager shall have no obligation to offer or ~~termination shall not affect or impair~~ sell any Shares, and the ~~parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. iv. The Agent hereby covenants~~ Company acknowledges and agrees ~~not to make any sales~~ that the Manager shall have no such obligation, in the event that an offer or sale of the Shares on behalf of the Company ~~pursuant~~ may 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 ~~this Section 3(a),~~ be an “underwriter” under the Act in a transaction that is other than ~~(A) (1)~~ by 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 as “~~Continuous~~ At the Market Offerings”). (ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (2confirmed promptly by electronic mail) not to sell Shares if such sales cannot be effected at or ~~through~~ 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 ~~market maker~~specified period (a “Suspension Period”); provided, however, that 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) and 4(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. (3iii) ~~directly~~ The Manager hereby covenants and agrees not to make any sales of Shares on ~~or through any~~ behalf of the Company, pursuant to this Section 3(a), other ~~national securities exchange or facility thereof, a trading facility~~ than (A) by means of ~~a national securities association, an alternative trading system, an electronic communication network or any similar market venue~~ 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 ~~Agent pursuant to a Terms Agreement~~Manager. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company, 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 ~~the~~ any 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 ~~for~~ from the sale of such Shares (the “Net Proceeds”). ~~vi. The Agent~~ (v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by ~~facsimile or~~ electronic mail) ~~to the Company promptly~~ as soon as is reasonably practicable following the close of trading on the NYSE each day in on which ~~the~~ Shares are sold ~~under~~ pursuant to this Section 3(a) setting forth (i) the number of ~~the~~ Shares sold on such day, ~~the aggregate gross sales proceeds and~~ (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of ~~the~~ Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ business day that is also a trading day on the NYSE following the date on which such sales are made (each such ~~day~~date, 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 ~~for~~ from the sale of such ~~Shares~~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 ~~Agent~~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 (“~~DTC~~DWAC”) ~~in return for payments in same day funds delivered to the account designated~~ or by such other means of delivery as may be mutually agreed upon by the ~~Company~~parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. If the ~~Company~~ Company, or its transfer agent (if applicable) ), shall default on upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ 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 ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If The Authorized Company Representatives shall be the ~~Agent breaches this Agreement by failing to deliver~~ contact persons for the ~~Net Proceeds~~ Company for all matters related to the ~~Company on any~~ 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 for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (as defined in Section ~~4(k)~~4(n) ~~and Filing Date (as defined in Section 4(a)~~hereof), the Company and the Operating Partnership shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell ~~the~~ Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 ~~of this Agreement~~hereof. (b) 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~~ hereof (each, a “Placement”), it will notify the ~~Agent~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent~~ Company, the Operating Partnership and the ~~Company~~ Manager will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 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 any Terms Agreement, the terms of such Terms Agreement will control. (c) Each sale of the Shares to the Agent 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 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 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 (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 Agent. (di) Under no circumstances shall the aggregate ~~value~~ gross sales proceeds of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the lesser of (iA) $100,000,000 and (B) the ~~Maximum Amount, (ii) the number of shares of the Common Stock~~ amount available for ~~issuance~~ offer and sale under the ~~currently effective~~ Prospectus and the Registration ~~Statement or (iii)~~ Statement, nor shall the ~~number and~~ aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized ~~from time to time~~ to be ~~issued and~~ sold under this Agreement by the ~~Board~~Company’s Board of Directors, or a duly authorized committee thereof, and notified to the ~~Agent~~ Manager in writing~~. (e) Except pursuant to a reoffer of~~ . Further, under no circumstances shall the aggregate gross sales proceeds from Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made sold pursuant to this Agreement ~~or an~~ together with the Shares sold pursuant to the Alternative ~~Equity~~ 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. (fii) If either ~~the Company or the Agent~~ 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~~ 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. (gd) 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 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)~~Manager, shall cancel any instructions for the offer or sale of any Shares, and the ~~Agent~~ Manager shall not be obligated to offer or sell any Shares, during (i) ~~during~~ any period in which the Company is, or could be deemed to be, in possession of material non-public ~~information,~~ information or (ii) ~~except as provided in Section 3(h) below, at any time~~ during the ~~period commencing on the seventh Business Day~~ fourteen (14) calendar days prior to any public announcement or release disclosing 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~~ Company’s results of operations ~~(each, an “Earnings Announcement”)~~ or financial condition for a completed quarterly or annual fiscal period 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~~announcement or release. (hf) ~~If the~~ The Company ~~wishes to offer, sell or deliver Shares at any time during the period from~~ acknowledges and ~~including an Announcement Date through and including the time~~ agrees that ~~is 24 hours after the corresponding Filing Time, the Company shall~~ (i) ~~prepare and deliver~~ 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 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 (Company or any other person or entity if it does not sell Shares for any reason other than ~~any earnings projections~~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, ~~similar forward-looking data~~ and ~~officers’ quotations~~(iii) ~~(each, an “Earnings 8-K”)~~the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement unless a Terms Agreement, in form and substance ~~reasonably~~ mutually satisfactory to the ~~Agent~~Company, the Operating Partnership and ~~obtain~~ the ~~consent of the Agent to the filing thereof (such consent not to be unreasonably withheld)~~Manager, (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~~executed by the Company, the ~~time~~ Operating Partnership and the Manager. (g) The Company agrees that ~~is 24 hours after~~ any offer to sell, any solicitation of an offer to buy, or any sales of Shares shall only be effected by or through the ~~time that~~ Manager or the ~~relevant Earnings Announcement was first publicly released) through~~ Alternative Manager on any single given day, but in no event by the Manager 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~~Alternative Manager, ~~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~~ event request that the ~~operation of~~ Manager and the ~~provisions of clauses (i) and (ii) of Section 3(g), which shall have independent application~~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) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales ~~agent,~~ agent and the 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. i. 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 (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 agreed to by the Company and the 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~~ 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 ~~which the NYSE is scheduled to close~~ 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 ~~regular weekday closing time~~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”), ~~(B) the Company has instructed~~ it will notify the Agent by ~~telephone~~ email notice (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~electronic mail~~the parties) containing the parameters in accordance with which it desires Shares to ~~make~~ 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 (Cwhich 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 ~~Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum~~ entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 reasonable efforts~~ permitted to sell, any ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on NASDAQ or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. ~~The foregoing rate~~ In lieu of ~~compensation shall not apply when the Agent acts as principal, in which case~~ the Company ~~may sell Shares~~ paying all compensation payable to the Agent ~~as principal at a price agreed upon at~~ for the ~~relevant Applicable Time~~ sale of the Shares pursuant to ~~a Terms~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ NASDAQ each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNASDAQ. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then currently effective Registration ~~Statement~~ 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 KeyBanc Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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. (gf) ~~Notwithstanding~~ Settlement for sales of Shares pursuant to this Section 4 and made in accordance with the terms of the applicable Acceptance will occur on the third business day that is also a trading day for NASDAQ (other than a day on which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made, unless another date shall be agreed to by the Company and the Agent (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any ~~other provision of~~ Settlement Date pursuant to this Agreement, the Company shall ~~not offer~~(i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the Agent to use its commercially reasonable efforts to sell ~~or deliver~~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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 KeyBanc 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 Company, but in no event by more than one of them, and the Company shall in no event request that more than one of Agent or KeyBanc sell shares of Common Stock on the same day. (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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer~~ sell, during: 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 ~~sell any Shares~~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 the 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, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Gladstone Capital Corp)

Sale and Delivery of Shares. (a) The Company’s board of directors has delegated to certain officers of the Company, which are listed as authorized representatives of the Company on Schedule 1 hereto (the Authorized Company Representatives), the authority to negotiate the terms and conditions of any such sale of the Shares. (b) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the Agent, ~~acting~~ as sales agent, and the Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, such Shares as agreed upon herein. The Shares may be offered and sold in (1) privately negotiated transactions (if and only if the ~~Shares~~ parties hereto have so agreed in writing), or (2) by any other method or payment permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including sales made directly on the ~~following terms~~New York Stock Exchange (the Exchange) or sales made to or through a market maker 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, and either party may withhold its consent thereto in such party’s sole discretion. i. (c) 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 ~~day that (A) is a~~ trading day ~~for the NYSE~~ (other than a day on which the ~~NYSE~~ Exchange is scheduled to close prior to its regular weekday closing time)) (each, (Ba 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 ~~electronic mail~~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 ~~make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate~~ the maximum ~~amount~~ number of ~~the~~ Shares to be sold by the Agent ~~daily as previously agreed to in writing or electronic transmission by the Agent~~ on such Trading Day (in any event not in excess of ~~(i)~~ the ~~amount~~ number available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~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 ~~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) at the time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share so 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 selling 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 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~~ (d) Notwithstanding the foregoing, the Company shall not ~~authorize~~ instruct the ~~issuance and sale of~~Agent to sell, and the Agent shall not be obligated to use its commercially reasonable efforts to sell, any ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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~~ board of ~~Directors (the “Board”)~~directors, or a duly authorized committee ~~thereof~~thereof or an Authorized Company Representative, and notified to the Agent in writing. ~~The~~ In addition, the Company or the Agent may, upon notice to the other party hereto by telephone (confirmed promptly by ~~electronic mail~~facsimile or email, which confirmation will be promptly acknowledged by the Company or Agent, as applicable), 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. iv(e) Under no circumstances shall the aggregate offering price of Shares sold pursuant to this Agreement and the Alternative Sales Agency Agreements 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 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 the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 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) are not satisfied with respect to the Company or the Common Stock, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. (g) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales~~ Shares sold under this Agreement shall be the actual execution price of the Shares on behalf of the Company pursuant to this Section 3(a), other than (A) (1) by 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 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 agreed sold by the ~~Company and the~~ Agent ~~pursuant to a Terms~~ under this Agreement~~. v.~~ . The compensation payable to the Agent for sales of ~~the~~ Shares ~~with respect to which~~ sold by the Agent ~~acts as sales agent~~ under this Agreement shall be ~~at a mutually agreed rate, not~~ equal to ~~exceed 2.0~~% of the gross sales price of the Shares for amounts of Shares sold by the Agent 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~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (h) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on the ~~NYSE~~ Exchange each day in which ~~the~~ Shares are sold by the Agent under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the ~~aggregate~~ gross sales ~~proceeds and~~ prices of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the 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~~. ~~vii.~~ (i) Settlement for sales of the Shares sold by the Agent pursuant to this ~~Section 3(a)~~ Agreement will occur on the third ~~Business~~ 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 day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Agent’s account, or to the account of the Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (~~“DTC”~~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~~ Company, or its transfer agent (if applicable) ), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If The individuals listed on Schedule 3 to this Agreement and any replacement or additional individuals identified to the Agent ~~breaches~~ in writing by an Authorized Company 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 ~~Agreement~~ Section. (j) Notwithstanding any other provision contained herein, if subsequent to a sale of 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 ~~failing~~ 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 in the manner contemplated in the Disclosure Package, the Prospectus and this Agreement, and (2) the Agent so notifies the Company, then, (W) the Agent shall not be required to deliver the applicable Net Proceeds ~~to the Company~~ on any Settlement Date for such Shares, (X) the ~~Shares~~ Agent shall return to the Company Shares, if any, delivered to it by the ~~Company~~Company for settlement of such sale, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (~~as defined in Section 4(k)~~Y) ~~and Filing Date (as defined in Section 4(a)),~~ the Company shall not be ~~deemed~~ required to ~~have affirmed each representation and warranty contained in this Agreement as if~~ deliver such ~~representation and warranty were made as~~ Shares for settlement of such ~~date, modified as necessary to relate to the Registration Statement~~ sale and ~~the Prospectus as amended as of such date. Any obligation of the Agent to use its commercially reasonable efforts to sell the Shares on behalf of~~ (Z) the Company shall not be ~~subject~~ required to pay the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified Agent any commission in ~~Section 6 of this Agreement~~connection with such sale. (bk) 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to ~~sell Shares~~sell, any solicitation of an offer to ~~buy Shares~~buy, or any sales of Shares or any other equity security of the Company shall only be effected by or through only one of the Agent or an the Alternative ~~Agent~~ Agents 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~~ other Alternative ~~Agents~~ Agent sell Shares on the same day; provided, however, that (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Sales Agency Agreement (Dominion Resources Capital Trust Iv)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares~~ exclusively through an Agent (the “Designated Agent”) acting as sales agent or directly to an Agent acting as principal from time to ~~time through the Agent, acting as sales agent~~time, and the 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 terms~~NYSE, or sales made to or through a market maker other than on an exchange or through an electronic communications network. i. (b) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the 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 has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C)~~ that the Company has satisfied its obligations under Section 6 of this Agreement and (C) that the Company has instructed an Agent to make such sales. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or securityholders of the Company 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 capacity other than as the Designated Agent under this Agreement. ~~The Company~~ 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 telephone (confirmed promptly by email by any of the Authorized Representatives and shall be addressed to each of the individuals from the Designated Agent set forth on Schedule 1 which confirmation will ~~designate~~ be promptly acknowledged by the Designated Agent) as to the maximum ~~amount~~ number of ~~the~~ Shares to be sold by the Designated Agent ~~daily as previously agreed to in writing or electronic transmission by the Agent~~ on such day (in any event not in excess of ~~(i)~~ the ~~amount~~ number available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~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 ~~on a particular day, consistent with its normal trading practices,~~ as sales agent 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) at the time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share so designated by the ~~Company at which such Shares may be sold). ii~~Company. The Company ~~acknowledges~~ and ~~agrees~~ 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 ~~under~~ by this Agreement, and (C) the Designated Agent shall be under no obligation to purchase Shares on a principal basis ~~pursuant to this Agreement,~~ except as otherwise specifically agreed by ~~the~~ either Agent and the ~~Company~~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. ~~iii. The~~ (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 ~~Share~~ Shares pursuant to this Agreement (i) at a price lower than the minimum price therefor ~~designated~~ authorized from time to time, or (ii) in a number in excess of the 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~~ board of ~~Directors (~~directors, or a duly authorized committee thereof, or any individual to whom such authority has been duly and properly delegated by the ~~“Board”),~~ 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 ~~or the Agent~~ 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 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). ~~iv.~~ (d) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Designated Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and~~ Designated Agent on the ~~Agent pursuant~~ NYSE or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the Designated Agent for sales of ~~the~~ Shares with respect to which the Designated Agent acts as sales agent ~~under this Agreement~~ shall be ~~at a mutually agreed rate, not~~ equal to ~~exceed 2.0~~up to 3.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Section ~~3(a) and payable as described in the succeeding subsection (vi) below~~2(d). 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~~ an Agent, acting as ~~principal~~ 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,~~ proceeds after the foregoing compensation payable to the Agents and after further deduction for any transaction fees imposed ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such ~~sales~~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. ~~vi. The~~ (e) If acting as a sales agent hereunder, the Designated Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on the ~~NYSE~~ NYSE, each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to ~~the~~ such Designated Agent with respect to such sales~~. Such compensation~~ . (f) Under no circumstances shall be 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 ~~invoiced in periodic statements~~ 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 ~~Agent~~ Company’s board of directors, or a duly authorized committee thereof, and notified to the ~~Company~~Designated Agent in writing. In addition, under no circumstances shall any Shares with ~~payment~~ respect to which the Designated Agent acts as sales agent be ~~made~~ sold at a price lower than the minimum price therefor authorized from time to time by the ~~Company promptly after its receipt~~ Company’s board of directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing. ~~vii.~~ (g) Settlement for sales of ~~the~~ Shares pursuant to this Section ~~3(a~~2(g) will occur on the ~~third~~ second Business Day that is also a 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 day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Designated Agent for settlement on such date shall be ~~issued and~~ delivered by the Company to the Designated Agent against payment of the Net Proceeds ~~for~~ from the sale of such Shares. Settlement for all ~~such~~ Shares shall be effected by ~~free~~ book-entry delivery of ~~the~~ Shares to the Designated Agent’s account at The Depository Trust Company ~~(“DTC”) in return for~~ against payments by the Designated Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to ~~the~~ an account designated by the Company. If the Company ~~or its transfer agent (if applicable)~~ shall default on its obligation to deliver ~~the~~ Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Designated Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Designated Agent any commission to which it would otherwise be entitled absent such default~~. If the Agent breaches this Agreement by failing~~ . (h) The Agents hereby covenant and agree not to ~~deliver the Net Proceeds to the Company on~~ make any ~~Settlement Date for~~ sales of the Shares ~~delivered by~~ on behalf of the Company, ~~the Agent will pay~~ pursuant to this Section 2, other than as shall be permitted by law and agreed upon by the Company ~~interest based on~~ and the ~~effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent~~Agents. ~~viii.~~ (i) At each Applicable Time, Settlement Date and Representation Date~~, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a))~~, the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement as if such representation and warranty were made as of such date~~Agreement, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the 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 herein, to the performance by the Company of 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 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (gj) Notwithstanding any other provision of this Agreement, the Company and the Agents agree that no sales of Shares shall take place, and 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~~Shares that would be sold, and the ~~Agent~~ Agents shall not be obligated to ~~offer or sell any Shares~~sell, ~~(i)~~ during any period in which the Company ~~is, or could be deemed to be,~~ is in possession of material non-public information. The Company agrees that any offer to sell, any solicitation of an offer to buy, or ~~(ii) except as provided in Section 3(h) below, at~~ any ~~time during the period commencing on the seventh Business Day prior~~ sales of Shares pursuant to ~~the date (each,~~ this Agreement shall only be effected by or through 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. (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)~~only a single Agent, ~~(ii) provide the Agent with the officers’ certificate~~on any single given date, ~~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)~~ no event 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~~ request that more than one Agent sell securities 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) of Section 3(g), which shall have independent applicationsame day.

Appears in 1 contract

Samples: At the Market Equity Distribution Agreement (W&t Offshore Inc)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell Shares through the applicable Agent(s) acting as sales agent or directly to the applicable Agent(s) acting as principal from time to ~~time~~ time. Sales of the Shares, if any, through ~~the Agent,~~ an Agent acting as sales ~~agent, and the~~ agent or directly to an Agent ~~agrees to use its reasonable efforts to sell,~~ acting as sales agent for the Company, the Shares on the following terms. i. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Agent daily as previously agreed to in writing or electronic transmission by the Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) 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 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) at the time of 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 the Agent principal 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 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 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 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. iv. The Agent 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) (1) made by 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 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 agreed by the Company and the Agent pursuant to a Terms Agreement. v. The compensation to the 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 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 for such Shares (the “Net Proceeds”). vi. The Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE ~~each day in which~~ or otherwise at market prices prevailing at the ~~Shares are sold under~~ time of sale, at prices related to prevailing market prices or at negotiated prices. For the avoidance of doubt, this Section 3(a) setting forth the number of the Shares sold on such day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company to the 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation 2 shall not apply to ~~(i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii)~~ sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, ~~and~~ in each case in which any Agent is acting for the Company in a capacity other than as Agent or principal under this Agreement. (b) The Shares are to be sold to an Agent on an agented basis on any day (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 (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. On any Trading Day, the Company may sell Shares through only one Agent and, if it determines to do so, shall instruct the applicable Agent by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged by such Agent) as to the maximum number of Shares to be sold on such Trading Day and the minimum price per Share at which such Shares may be sold (each, a “Sale Instruction”). Subject to the terms and conditions specified herein (including, without limitation, the accuracy of 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 5 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 Shares so designated by the Company as sales agent in accordance with such instruction. On 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 Agent through whom the sale of Shares are to be made as sales agent on any ~~day during~~ Trading Day may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy or email, which no confirmation will be promptly acknowledged by the receiving party), suspend the offering of Shares with respect to which such Agent is acting as sales ~~are made~~ agent 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, or with respect to Shares that the Company has agreed to sell, hereunder prior to the giving of such notice. (d) The gross sales price of any Shares sold pursuant to this 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 otherwise, at prices related to prevailing market prices or at negotiated prices. The compensation payable to an ~~Alternative Equity Distribution Agreement~~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% of the gross sales price 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 for such 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. (e) If acting as sales agent hereunder, the applicable Agent shall provide written confirmation to the Company following the close of trading on the NYSE on each Trading Day on 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 aggregate Net Proceeds to the Company and the aggregate compensation payable by the Company to such Agent with respect to such sales. (f) ~~If either~~ 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 ~~has reason~~ acts as sales agent be offered or sold, or be the subject of a Sale Instruction to ~~believe that~~ 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 ~~Exchange~~ 1934 Act are not satisfied with respect to the Company or the Shares, it the Company shall promptly notify the ~~other party~~ Agents and future offers and sales of Shares through the ~~Shares~~ Agents on an agented basis under this ~~Agreement and any Terms~~ Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of ~~each party~~the parties hereto. (gh) Settlement for sales of Shares will occur on the third business day that is also a Trading Day following the trade date on which such sales are made, unless another date shall be agreed to in writing by the Company and the applicable Agent(s) (each such day, a “Settlement Date”). On each Settlement Date 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares through an Agent as sales agent on any Settlement Date, the Company shall (i) indemnify and hold such Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay such Agent any commission to which it would otherwise be entitled absent such default. (i) Notwithstanding any other provision of this Agreement, the Company shall not ~~offer, sell~~ offer or ~~deliver~~sell, or ~~request the~~ instruct an Agent to offer or ~~sale of~~sell, any Shares through an Agent as sales agent (and, by notice to the ~~Agent~~ Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any ~~instructions~~ Sale Instruction for ~~the~~ any such offer or sale of any ~~Shares~~Shares prior to the commencement of the periods referenced below), and the ~~Agent~~ Agents shall not be obligated to make any such offer or ~~sell any~~ 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,~~ information or (ii) except as provided in Section ~~3(h~~2(j) ~~below~~hereof, at any time during the period commencing on the ~~seventh Business Day~~ business day prior to the ~~date (each, an “Announcement Date”) on which~~ time the Company ~~shall issue~~ issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating 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 “Filing Time”)~~ a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement. (hj) If Notwithstanding clause (ii) of Section 2(i) hereof, if the Company wishes to ~~offer,~~ offer or sell Shares to or ~~deliver Shares~~ through an Agent at any time during the period from and including an Earnings Announcement ~~Date~~ through and including ~~the time that is 24 hours after~~ the corresponding Filing Time, the Company shall first (i) prepare and deliver to ~~the~~ such Agent (with a copy to counsel to for the ~~Agent~~Agents) a Current Report on Form 8-K ~~which shall include~~ that includes substantially the same financial and related information as (together with management’s discussion and analysis thereof) that was ~~set forth~~ included in ~~the relevant~~ such Earnings Announcement (other than any earnings ~~projections,~~ projections and similar forward-looking data and ~~officers’~~ officer’s quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to ~~the~~ such Agent, ~~and~~ and, prior to its filing, obtain the written consent (which may be by email) of ~~the~~ such Agent to ~~the~~ such filing ~~thereof~~ (~~such~~ which consent shall not to be unreasonably withheld), (ii) provide ~~the~~ such Agent with the officers’ certificate, ~~accountants’ letter and~~ opinions and letters of counsel ~~called for by Sections 4(k~~and accountants’ letter specified in Section 3(p), (~~l), (m~~q) and (n) r), respectively, hereof~~; respectively~~, (iii) afford ~~the~~ such Agent the opportunity to conduct a due diligence review in accordance with Section ~~4(o~~3(u) hereof prior to filing such Earnings 8-K 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, opinion or letter of counsel or accountants’ letter ~~and opinions and letters of counsel~~ pursuant to this Section ~~3(h~~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 and legal opinions and~~ letters as provided in Section ~~4 hereof~~ 3(p), (q) and (r), respectively, hereof, and (B) this Section ~~3(h~~2(j) shall in no way affect or limit the operation of ~~the provisions of clauses~~ clause (i) ~~and (ii)~~ of Section ~~3(g)~~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 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 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 Agent(s) shall specify the requirements, if any, for the officers’ certificate, opinions and letters of counsel and accountants’ letters pursuant to Section 3(p), (q) and (r), respectively, hereof. In the event of a conflict between the terms of this Equity Sales Agreement and a Terms Agreement, the terms of such Terms Agreement shall control.

Appears in 1 contract

Samples: Equity Sales Agreement (Kimco Realty Corp)

Sale and Delivery of Shares. (a) 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 the ~~Agent~~Managers, acting as sales ~~agent~~agents, and ~~the Agent~~ each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. i. (i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the ~~Agent~~ 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 representative of the Company on Schedule I hereto (which such Schedule I may be amended by the Company from time to time by written notice to the Managers), has instructed ~~the Agent~~ 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 and (C) the Company has satisfied its obligations under Section 6 of this Agreement; provided, however, the Company may sell the Shares through only one Manager in any single trading day. The Company will designate the maximum amount of the Shares to be sold by ~~the Agent~~ such Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by ~~the Agent~~ such Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, ~~the Agent~~ such Manager shall use ~~its~~ commercially reasonable efforts consistent with its normal trading and sales practices to sell on a particular ~~day, consistent with its normal trading practices,~~ 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 Agent~~ such Manager under this Section 3(a) on Nasdaq at the time of 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)~~Shares. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ applicable Manager will be successful in selling the Shares, (B) ~~the Agent~~ such 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 Agent~~ such Manager to use ~~its~~ commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) ~~the Agent~~ such Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by ~~the Agent~~ such Manager and the Company. (iii. ) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ 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 ~~the Agent~~ such Manager 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 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. (iv~~. The Agent~~ ) Each Manager 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 ordinary brokers’ transactions between members of ~~the NYSE~~ Nasdaq that qualify for delivery of a Prospectus to Nasdaq in accordance with Rule 153 under the Securities 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 agreed by the Company and the ~~Agent~~ applicable Manager pursuant to a Terms Agreement. v. (v) The compensation to ~~the Agent~~ a Manager for sales of the Shares with respect to which ~~the Agent acts~~ such Manager act as sales agent under this Agreement shall be ~~at a mutually agreed rate, not~~ up to ~~exceed 2.0~~1.0% of the gross sales price of the Shares sold pursuant to this Section 3(a) (such compensation, the “Manager Compensation”) and payable as described in the succeeding subsection (vivii) below. The foregoing rate of compensation shall not apply when ~~the Agent~~ a Manager acts as principal, in which case the Company may sell Shares to ~~the Agent~~ 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 on the Agent by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi. ) The ~~Agent~~ Managers shall provide written confirmation (which may be by facsimile or electronic mail) to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ 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 ~~Agent~~ Managers 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~~. (vii. ) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business Day~~ 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 ~~Agent~~ Managers for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Managers against payment of the ~~Net Proceeds~~ 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 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 sales (the “Transaction Fees”) (such net amount, the “Net Proceeds”) or (ii) the Gross Proceeds. In the event that a Manager delivers the Gross Proceeds to the Company at a Settlement Date, the amounts set forth in clauses (i)(A), (B) and (C) of the preceding sentence shall be set forth and invoiced in a periodic statement from such Manager to the Company and payment of such amounts shall be made promptly by the Company after its receipt thereof. Settlement for all such Shares shall be effected by free delivery of the Shares to ~~the Agent~~such Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Managers harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay ~~the Agent~~ such Manager any commission to which it would otherwise be entitled absent such default. If ~~the Agent~~ any Manager breaches this Agreement by failing to deliver the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees to the Company on any Settlement Date for the Shares delivered by the Company, ~~the Agent~~ such Manager will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to ~~the Agent~~such Manager. (viii. ) At each Applicable Time, Settlement ~~Date,~~ Date and Representation Date (as defined in Section 4(k)) and each Filing Date (as defined in Section ~~4(a~~4(w)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent~~ any Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (ix) Notwithstanding any 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 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 any 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 ~~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~~ Manager or Managers of the proposed terms of such Placement. If ~~the Agent~~such Manager or Managers, 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~~ such Manager or Managers and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 Agent~~ such Manager or Managers unless and until the Company and ~~the Agent~~ 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 terms of such Terms Agreement will control. (c) Each sale of the Shares to ~~the Agent~~ 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 Agent~~such Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by ~~the Agent~~a Manager. The commitment of the ~~Agent~~ 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 ~~the Agent~~ a Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, ~~underwriters~~ managers acting together with ~~the Agent~~ 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 ~~the Agent~~such Manager. (d) Under no circumstances shall the number and aggregate ~~value~~ amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) the ~~Maximum Amount~~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 ~~Agent~~ 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, and the price at which any Shares are offered or sold is not lower than, the aggregate number of Shares 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) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either ~~the Company or the Agent~~ 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. (gf) Notwithstanding any other provision of this ~~Agreement,~~ 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~~Shares that would be sold, and ~~the Agent~~ any Manager shall not be obligated to ~~offer or sell any Shares~~sell, ~~(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 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (United Airlines, Inc.)

Sale and Delivery of Shares. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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 the ~~Agent~~Manager, ~~acting~~ as sales agent, as and when it provides instructions, in its discretion, for the sale of Shares, and the ~~Agent~~ Manager 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 to upon by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 ~~of this Agreement~~hereof. The Company will designate the maximum amount of the Shares to be sold by the ~~Agent~~ Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the ~~Prospectus and the~~ currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) 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 on a particular day, consistent with its normal trading practices, all or in an amount in excess of the amount of 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) at the time of 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 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 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 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 authorized from time to time to be issued and sold under this Agreement by the Company’s Board of ~~Directors (the “Board”)~~Directors, or a duly authorized committee thereof, and notified to the ~~Agent~~ Manager by electronic mail substantially in ~~writing~~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. ~~The~~ 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 time of sale, at prices related to prevailing market prices or at negotiated prices. Subject to the terms and conditions of this Section 3(a), 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 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 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 means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At the Market Offerings”). (ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the 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 Agent~~ Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for ~~any reason and at any time~~a specified period (a “Suspension Period”); provided, however, that such ~~suspension or termination~~ 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~~notice and provided, further, that there shall be no obligations under Sections 4(n), 4(o), 4(p) and 4(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. ~~iv.~~ (iii) The ~~Agent~~ Manager 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 ~~ordinary brokers’ transactions between members of~~ At the 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 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 ~~Agent pursuant to a Terms Agreement~~Manager. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company, 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 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 for such Shares (the “Net Proceeds”). ~~vi.~~ (v) The ~~Agent~~ Manager shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ as soon as is reasonably practicable following the close of trading on the NYSE each day in which the Shares are sold ~~under~~ pursuant to this Section 3(a) setting forth the ~~number~~ amount of the Shares sold on such day, ~~the aggregate gross sales proceeds and~~ the Net Proceeds to the Company, and the compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ business day following the date on which such sales are made (each such ~~day~~date, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the ~~Agent~~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 (“~~DTC~~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~~ Company, or its transfer agent (if applicable) ), shall default on upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If The Authorized Company Representatives shall be the ~~Agent breaches this Agreement by failing to deliver~~ contact persons for the ~~Net Proceeds~~ Company for all matters related to the ~~Company on any~~ 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 for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (as defined in Section ~~4(k)~~4(n) ~~and Filing Date (as defined in Section 4(a))~~hereof, the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement 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~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 ~~of this Agreement~~hereof. (bi) 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~~ hereof (each, a “Placement”), it will notify the ~~Agent~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent~~ Company and the ~~Company~~ Manager will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 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 any Terms Agreement, the terms of such Terms Agreement will control. (c) Each sale of the Shares to the Agent 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 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 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 (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 Agent. (di) Under no circumstances shall the aggregate ~~value~~ gross sales proceeds of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the lesser of (iA) the ~~Maximum Amount,~~ amount set forth in Section 1 hereof and (iiB) the ~~number of shares of the Common Stock~~ amount available for ~~issuance~~ offer and sale under the currently effective Registration Statement ~~or (iii)~~ nor shall the ~~number and~~ aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized ~~from time to time~~ to be issued and sold from time to time under this Agreement by the ~~Board~~Company’s Board of Directors, or a duly authorized committee thereof, and notified to the ~~Agent~~ Manager in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other ~~party~~ party, and sales of the Shares under this ~~Agreement and any Terms~~ Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. (gd) ~~Notwithstanding any other provision~~ 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 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~~ Manager, sales effected pursuant to this Agreement may not be ~~obligated to offer or sell any Shares, (i) during any period in which~~ requested by the Company ~~is, or could~~ and need not be ~~deemed to be, in possession of material non-public information, or (ii)~~ made by the Manager 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 operations (each, an “Earnings Announcement”) through and including the time that ~~is 24 hours~~ begins after the ~~time that the Company files (a “Filing Time”)~~ filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K ~~that includes consolidated financial statements~~ as of and within the period required by the Exchange Act (each such date, a “Filing Date”) and ends, for ~~the same period or~~ 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 ~~case may~~ end of the quarter in which the applicable Filing Date occurs. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Manager, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is or could be deemed to be, ~~covered by such Earnings Announcement~~in possession of material non-public information. (hf) ~~If the~~ The Company ~~wishes to offer, sell or deliver Shares at any time during the period from~~ acknowledges and ~~including an Announcement Date through and including the time~~ agrees that ~~is 24 hours after the corresponding Filing Time, the Company shall~~ (i) ~~prepare and deliver~~ 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 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 (Company or any other person or entity if it does not sell Shares for any reason other than ~~any earnings projections~~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, ~~similar forward-looking data~~ and ~~officers’ quotations~~(iii) ~~(each, an “Earnings 8-K”)~~the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement unless a Terms Agreement, in form and substance ~~reasonably~~ mutually satisfactory to the ~~Agent~~Company and Manager, 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~~ executed by the Company and the Manager. (org) The Company agrees that any offer to sell, ~~if later~~any solicitation of an offer to buy, ~~the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released)~~ or any sales of Shares shall only be effected by or through ~~and including the time that is 24 hours after the Filing Time~~ only one of the ~~relevant Quarterly Report~~ Manager or the Alternative Manager on ~~Form 10-Q or Annual Report on Form 10-K~~any single given day, ~~as the case may be. For purposes of clarity~~but in no event by both, ~~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~~ event request that the ~~operation of~~ Manager and the ~~provisions of clauses (i) and (ii) of Section 3(g), which shall have independent application~~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) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares~~ exclusively through the Agent acting as sales agent or directly to the Agent acting as principal from time to ~~time through the Agent, acting as sales agent~~time, and the 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 terms~~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. 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. i. (b) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the 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 has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C)~~ that the Company has satisfied its obligations under Section 6 of this Agreement and that the Company has instructed the Agent to make such sales. 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 such securities for the accounts of such persons in which Xxxxxx Xxxxxxxx is acting for the Company in a capacity other than as Agent under this Agreement. ~~The~~ On any Trading Day, the Company may instruct the Agent by 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 Agent set forth on Schedule 1, which confirmation will ~~designate~~ be promptly acknowledged by the Agent) as to the maximum ~~amount~~ number of ~~the~~ Shares to be sold by the Agent ~~daily as previously agreed to in writing or electronic transmission by the Agent~~ on such day (in any event not in excess of ~~(i)~~ the ~~amount~~ number available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~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 ~~on a particular day, consistent with its normal trading practices,~~ as sales agent 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) at the time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share so designated by the Company ~~at which such Shares may be sold). ii~~and in the manner and on the terms so designated by the Company. The Company ~~acknowledges~~ and ~~agrees~~ 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 ~~it does~~ 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 ~~under~~ by 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 each of the Agent and the ~~Company~~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. ~~iii. The~~ (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 ~~Share~~ Shares pursuant to this Agreement (i) at a price lower than the minimum price therefor ~~designated~~ 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~~ board of ~~Directors (the “Board”)~~directors, or a duly authorized committee thereof, and notified to the Agent in writing. ~~The~~ In addition, the Company may, upon notice to the Agent, suspend the offering of the Shares or the Agent may, upon notice to the ~~other party hereto by telephone (confirmed promptly by electronic mail)~~Company, suspend the offering of the Shares with respect to which the 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 may be given by 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 Agent set forth on Schedule 1, which confirmation will be promptly acknowledged). ~~iv.~~ (d) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and~~ Agent on the ~~Agent pursuant~~ Nasdaq or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ equal to ~~exceed 2.0~~up to 3.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. 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~~ Agent, acting as ~~principal~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi. The~~ (e) If acting as a sales agent hereunder, the Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on the ~~NYSE~~ Nasdaq, each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to ~~the~~ such Agent with respect to such sales~~. Such compensation~~ . (f) Under no circumstances shall be 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 ~~invoiced in periodic statements~~ 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 ~~Company, with payment to be made by the Company promptly after its receipt thereof~~Agent in writing. ~~vii.~~ (g) Settlement for sales of ~~the~~ Shares pursuant to this Section ~~3(a)~~ 2 will occur on the ~~third Business~~ second business day that is also a 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 day, 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 ~~for~~ from the sale of such Shares. Settlement for all ~~such~~ Shares shall be effected by ~~free~~ book-entry delivery of ~~the~~ Shares to the Agent’s account at The Depository Trust Company ~~(“DTC”) in return for~~ against payments by the Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to ~~the~~ an account designated by the Company. If the Company ~~or its transfer agent (if applicable)~~ shall default on its obligation to deliver ~~the~~ Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Agent any commission to which it would otherwise be entitled absent such default~~. If~~ . (h) Notwithstanding any other provision of this Agreement, the Company and the Agent ~~breaches this Agreement by failing to deliver the Net Proceeds to~~ agree that no sales of Shares shall take place, and the Company on shall not request the sale of any ~~Settlement Date for the~~ Shares ~~delivered by the Company~~that would be sold, and the Agent ~~will pay~~ shall not be obligated to sell, during any period in which the Company ~~interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due~~ is, or could be deemed to ~~the Agent~~be, in possession of material non-public information. ~~viii.~~ (i) At each Applicable Time, Settlement Date, ~~Representation~~ Registration Statement Amendment Date ~~(as defined in Section 4(k))~~ and ~~Filing Date (as defined in Section 4(a))~~each Company Periodic Report Date, the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement 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~~Agreement. Any obligation of the 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 herein, to the performance by the Company of 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 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: At the Market Equity Offering Sales Agreement (Pulse Biosciences, Inc.)

Sale and Delivery of Shares. (a) ~~Subject~~ Upon the basis of the representations and warranties and subject to the terms and conditions ~~and in reliance upon the representations and warranties~~ herein set forth, the Company agrees to issue and sell to the respective Underwriters, and each of the Underwriters, severally and not jointly, agrees to purchase from the Company the number of Firm Shares set forth opposite the name of such Underwriter in Schedule A attached hereto, subject to adjustment in accordance with Section 7 hereof at a purchase price of $3.84 per Share, less an amount per Share equal to any dividends or other distributions declared by the Company and payable on the Firm Shares but not payable on the Additional Shares. The Company is advised by the Representatives that the Underwriters will (i) make a public offering of their respective portions of the Firm Shares as soon after the effectiveness of this Agreement as in the Representatives’ judgment is advisable and (ii) initially offer the Firm Shares upon the terms and conditions set forth in the Prospectus. The Representatives may from time to time ~~through~~ increase or decrease the Agent, acting as sales agent, and the Agent agrees to use its reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. i. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount public offering price of the Shares after the initial public offering to ~~be sold by~~ such extent as the ~~Agent daily as previously agreed~~ Representatives may determine. (b) In addition, the Company grants to ~~in writing or electronic transmission by~~ the ~~Agent~~ several Underwriters the option (~~in any event not in excess~~ the “Additional Shares Option”) to purchase, and upon the basis of ~~(i)~~ the ~~amount available for issuance under the Prospectus~~ representations and ~~the currently effective Registration Statement less (ii) any amounts already issued~~ warranties and ~~sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) and the minimum price per Share at which such Shares may be sold. Subject~~ subject to the terms and conditions ~~hereof~~herein set forth, the ~~Agent~~ Underwriters shall ~~use its commercially reasonable efforts~~ have the right to ~~sell on a particular day~~purchase, ~~consistent~~ severally and not jointly, from the Company ratably in accordance with ~~its normal trading practices~~the number of Firm Shares to be purchased by each of them, all or a portion of the Additional Shares ~~designated for~~ at the ~~sale~~ same purchase price per share to be paid 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) at the time of 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 the Agent will be successful in selling the Shares, (B) the Agent will incur no liability or obligation Underwriters to the Company ~~or any other person or entity if it does not sell~~ for the Firm Shares. The Additional Shares ~~for any reason other than a failure~~ Option may be exercised by the ~~Agent to use its commercially reasonable efforts consistent with its normal trading~~ Representatives on behalf of the several Underwriters at any time 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 on or before the thirtieth day following the date of this Agreement 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~~ 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~~any such date and time being herein referred to as an “Additional Time of Purchase”)~~, 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~~ no Additional Time of such notice. iv. The Agent 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) (1) by 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 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 Purchase shall be ~~agreed by~~ earlier than the ~~Company and~~ Time of Purchase (as defined below) or later than the Agent pursuant to a Terms Agreement. v. The compensation to the 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 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, tenth business day 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 for such Shares (the “Net Proceeds”). vi. The Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which ~~such sales are made (~~the Additional Shares Option shall have been exercised. The number of Additional Shares to be sold to each ~~such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date~~ Underwriter shall be ~~issued and delivered by~~ the ~~Company~~ number which bears the same proportion to the ~~Agent against payment~~ 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 to adjustment in accordance with Section 7 hereof). (c) Payment of the ~~Net Proceeds~~ purchase price for the ~~sale of such Shares. Settlement for all such~~ Firm Shares shall be ~~effected~~ made to the Company by ~~free~~ Federal Funds wire transfer against delivery of the certificates or security entitlements in respect of the Firm Shares to the ~~Agent’s account at~~ Representatives through the facilities of The Depository Trust Company (“DTC”) ~~in return~~ for ~~payments in same day funds delivered~~ 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 (unless another time shall be agreed to ~~the account designated~~ by the ~~Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify~~ Representatives and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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 Agent shall be made postponed in accordance with the ~~terms~~ provisions 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 Agent. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the AgentSection 7 hereof). The ~~commitment of the Agent to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations~~ time at which such payment 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~~ delivery are 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 (each such time and date being made is herein referred to ~~herein~~ as a the “Time of ~~Delivery”)~~ Purchase.” Electronic transfer of the Firm Shares shall be made to the Representatives at the Time of Purchase in such names and ~~place of delivery of and payment for~~ in such ~~Shares. Such Terms Agreement~~ denominations as the Representatives 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 Agentspecify. (d) ~~Under no circumstances shall the aggregate value~~ Payment of the purchase price for the Additional Shares ~~sold pursuant to this Agreement,~~ shall be made at the ~~Alternative Equity Distribution Agreements~~ Additional Time of Purchase in the same manner and ~~any Terms Agreement exceed (i)~~ at the ~~Maximum Amount, (ii)~~ same office and time of day as the ~~number of shares~~ payment for the Firm Shares. Electronic transfer of the ~~Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the~~ Additional Shares ~~authorized from time to time to~~ shall be ~~issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified~~ made to the ~~Agent~~ Representatives at the Additional Time of Purchase in ~~writing~~such names and in such denominations as the Representatives shall specify. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one Each of the ~~Agent or an Alternative Agent on any single given day, but in no event by more than one,~~ Representatives individually and ~~the Company shall in no event request that the Agent and any~~ not as representatives of the ~~Alternative Agents sell Shares on the same day; provided~~Underwriters, ~~however, that~~ may (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 but shall not be obligated ~~to offer~~ to) make payment of the purchase price for the Firm Shares or ~~sell any~~ the Additional Shares, ~~(i) during~~ if any, to be purchased by any ~~period in which~~ Underwriter whose funds have not been received by the ~~Company is,~~ Time of Purchase or ~~could be deemed to be, in possession~~ any applicable Additional Time 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 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 periodsPurchase, as the case may be, ~~covered by~~ but such ~~Earnings Announcement~~payment shall not relieve such Underwriter from its obligations hereunder. (hf) If Deliveries of 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 documents described in Section 5 hereof with respect 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 purchase of the ~~Agent to~~ Shares shall be made at the ~~filing thereof (such consent not to be unreasonably withheld)~~offices of Xxxxxx, ~~(ii) provide~~ Xxxx & Xxxxxxxx LLP at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, at 10:00 A.M., New York City time, at the ~~Agent with the officers’ certificate, accountants’ letter and opinions and letters~~ Time 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 (orPurchase and, if ~~later~~applicable, ~~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~~ any Additional Time of ~~the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K~~Purchase, 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Underwriting Agreement (Contango Oil & Gas Co)

Sale and Delivery of Shares. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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 the ~~Agent~~Manager, ~~acting~~ as sales agent, and the ~~Agent~~ Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. ~~i. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by~~ (i) Each time that the Company wishes to issue and ~~the Agent~~ 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”), 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”). 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 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, unless and until (i) the Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum entire amount of the Shares ~~to be sold~~ covered by the Agent daily as previously agreed to in writing or electronic transmission by the Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less Placement Notice have been sold, (ii) ~~any amounts already issued and sold pursuant to~~ in accordance with Section 3(a)(ii) hereof, 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 ~~and~~ has been terminated under the ~~Alternative Equity Distribution Agreements) and the minimum price per Share at which such Shares may be sold~~provisions of Section 9. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its commercially reasonable efforts to offer and sell ~~on a particular day, consistent with its normal trading practices,~~ all of the Shares designated ~~for~~ in the ~~sale by~~ Placement Notice; provided, however, that the ~~Company on such day. The gross sales price of~~ Manager shall have no obligation to offer or sell any Shares, and 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) at the time of 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 the Manager shall have no such obligation in the event an offer or sale of the Shares on behalf of the Company may in the judgment of the 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 an “underwriter” under the 1933 Act in a transaction that is other than (A) ~~there can be no assurance~~ by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the ~~Agent will be successful~~ NYSE in ~~selling~~ accordance with Rule 153 under the ~~Shares,~~ 1933 Act or (B) directly on or through an electronic communication network, a “dark pool” or any similar market venue (the ~~Agent will incur no liability or obligation~~ transactions described in (A) and (B) are hereinafter referred to as “At the Market Offerings”). (ii) Notwithstanding the foregoing, 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 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 Manager may, upon notice to the other party ~~hereto~~ by telephone (confirmed promptly by electronic ~~mail~~mail from such party), suspend the offering of the Shares ~~for any reason and at any time~~pursuant to this Agreement or suspend or terminate a previously issued Placement Notice; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. ~~iv.~~ (iii) The ~~Agent~~ Manager 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 ~~ordinary brokers’ transactions between members of~~ At the 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 Market Offerings and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the ~~Agent pursuant to a Terms Agreement~~Manager. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company, 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~~ up to ~~exceed 2.0~~1.0% of the gross sales price of 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~~ Manager acts as principal, in which case the Company may sell Shares to the ~~Agent~~ Manager as principal at a price agreed upon at the relevant ~~Applicable Time~~ 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~~ connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). ~~vi.~~ (v) The ~~Agent~~ Manager shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ as soon as practicable following the close of trading on the NYSE each day in which the Shares are sold under this Section 3(a) setting forth the ~~number~~ aggregate amount of the Shares sold on such day, the aggregate ~~gross sales proceeds and the~~ Net Proceeds to the Company, and the aggregate compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business~~ second 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 ~~day~~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 ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by ~~free delivery~~ electronically transferring the Shares by the Company or its transfer agent to the Manager’s account, or to the account of the ~~Shares to the Agent~~Manager’s ~~account~~ 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 Company and the Manager, which in all cases shall be freely tradable, transferable, registered shares eligible for delivery through DTC, in return for payments in same day funds delivered to the account designated by the Company. If the ~~Company~~ Company, or its transfer agent (if applicable) ), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. ~~If the Agent breaches this Agreement by failing to deliver the Net Proceeds~~ The Authorized Company Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company ~~on any~~ 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 for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (as defined in Section ~~4(k)~~4(q) ~~and Filing Date (as defined in Section 4(a)~~hereof), the Company shall be deemed to have affirmed ~~each representation~~ its representations and ~~warranty~~ warranties contained in this ~~Agreement 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~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the ~~Company herein~~Company, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 5 of this Agreement. (bi) 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”)~~or as set forth in Section 3(a) of any Alternative Equity Distribution Agreement, it ~~will~~ may elect, in its sole discretion, to notify the ~~Agent~~ Manager of the proposed terms of such ~~Placement~~sale. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent and~~ Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 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 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 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 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 promptly calculate and provide in writing to the Company a report setting forth, for the prior week, the average daily trading volume (as defined in Rule 100 of Regulation M under the Exchange Act) of the Common Stock. (e) Each sale of the Shares to or through the ~~Agent~~ Manager or any Alternative Manager, as applicable, shall be made in accordance with the terms of this Agreement ~~and~~or, if applicable, a Terms Agreement, ~~which will provide for~~ or the ~~sale of such Shares to~~respective Alternative Equity Distribution Agreement or, ~~and the purchase thereof by~~if applicable, ~~the Agent. A~~ an Alternative Terms ~~Agreement may also specify certain provisions relating to the reoffering of such Shares by the Agent~~Agreement, as applicable. The commitment of the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~ 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 (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~~ 5 hereof and any other information or documents required by the ~~Agent~~Manager. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Main Street Capital CORP)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agents acting as sales ~~agent~~agents, and the ~~Agent agrees~~ Agents agree to use ~~its~~ their commercially reasonable efforts to ~~sell,~~ sell as sales ~~agent~~ 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 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 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 ~~following terms. i. The~~ number of Shares ~~are to~~ 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 ~~daily basis or otherwise as~~ 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 ~~any day~~ 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 (Aor other method mutually agreed to in writing by the parties) ~~is a trading day for~~ of all of the ~~NYSE~~ terms of such Placement Notice, as proposed to be modified (~~other than a day on which~~ the ~~NYSE is scheduled to close prior to its regular weekday closing time~~“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. (BNew 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 Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum entire amount of the Shares ~~to be sold~~ 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 ~~daily as previously agreed~~ will have any obligation whatsoever with respect to ~~in writing or electronic transmission by~~ a Placement unless and until the Company delivers a Placement Notice to the Designated Agent ~~(in any event not in excess of~~ and there occurs with respect thereto either (i) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ 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,~~ 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 ~~under~~ by 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~~ (b) 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 reasonable efforts~~ permitted to sell, any ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Designated Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Designated Agent ~~pursuant~~ on Nasdaq or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the Designated Agent for sales of ~~the~~ Shares with respect to which the Designated Agent acts as sales agent ~~under this Agreement~~ shall be at a ~~mutually agreed rate, not to exceed~~ maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. ~~The foregoing rate~~ In lieu of ~~compensation shall not apply when the Agent acts as principal, in which case~~ the Company ~~may sell Shares~~ paying all compensation payable to the Designated Agent ~~as principal at a price agreed upon at~~ for the ~~relevant Applicable Time~~ sale of the Shares pursuant to ~~a Terms~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Designated Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Designated Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ Nasdaq each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Designated Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNasdaq. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then currently effective Registration ~~Statement~~ 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 Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Designated Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall 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~~a duly authorized committee thereof, and notified to the ~~Company shall~~ Designated Agent in no event request that the Agent and any of the Alternative Agents sell Shares on the same day; provided, however, that (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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. (gf) ~~Notwithstanding any~~ Settlement for sales of Shares pursuant to this Section 4 and made in accordance with the terms of the applicable Acceptance will occur on the first business day that is also a trading day for Nasdaq (other ~~provision~~ than a day on which Nasdaq is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are 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 day, 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 or its transfer agent to the Designated Agent against payment of ~~this Agreement,~~ 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 Designated Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to an account designated by the Company. If the Company shall ~~not offer, sell or deliver, or request the offer or sale of, any Shares and, by notice~~ default on its obligation 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 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 on any ~~time during the period from and including an Announcement~~ Settlement Date ~~through and including the time that is 24 hours after the corresponding Filing Time~~pursuant to this Agreement, the Company shall (i) ~~prepare~~ indemnify and ~~deliver to~~ hold the Designated Agent ~~(with~~ harmless against any loss, claim or damage arising from or as a ~~copy to counsel to~~ result of such default by the ~~Agent) a Current Report on Form 8-K which shall include substantially the same financial~~ Company 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~~ pay the Designated Agent ~~with the officers’ certificate~~any commission to which it would otherwise be entitled absent such default. (g) At each Applicable Time, ~~accountants’ letter~~ each Settlement Date and ~~opinions and letters of counsel called for by Sections 4(k~~each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the 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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (l)h) Except as may be mutually agreed by the Company and the Designated Agent, ~~(m)~~ the Company and ~~(n) hereof; respectively~~the Designated Agent agree that no sales of Shares shall take place, ~~(iii) afford~~ and the Company shall not request the sale of any Shares that would be sold, and the Designated 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~~ obligated to sell, during: the period ~~from and after~~ that commences on the ~~time at which~~ fifth (5th) business day prior to 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 Company’s filing of ~~the relevant~~ its Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as applicable, and ending on 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 date on which the Company ~~from any of~~ files with the Commission its ~~obligations under this Agreement with respect to any~~ Quarterly Report on Form 10-Q (the “10-Q Filing”) or its Annual Report on Form 10-KK (the “10-K Filing”), as applicable (each such filing referred to in clause (1) or (2) shall also be referred to herein as a “Quarterly Filing”). To the ~~case may be~~extent the Company releases its earnings for its most recent quarterly period or fiscal year, ~~including~~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 shall take place for the period beginning on the date of the Earnings Release and ending on the date of the applicable Quarterly Filing. Notwithstanding the foregoing, without ~~limitation~~the prior written consent of each of the Company and the Designated 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 Designated Agent shall not be obligated to sell, during any period in which the Company is in possession of material non-public information. (i) With respect to the offering and sale of Shares pursuant to this Agreement, the ~~obligation~~ Company agrees that any offer to ~~deliver officers’ certificates~~sell Shares, ~~accountants’ letters~~ any solicitation of an offer to buy Shares, and ~~legal opinions~~ any sales of Shares shall only be effected by or through a single Agent on any single given day, and ~~letters as provided in Section 4 hereof and (B) this Section 3(h)~~ the Company shall in no ~~way affect~~ event request that more than one Agent offer or ~~limit~~ sell Shares pursuant to this Agreement on the ~~operation of the provisions of clauses (i) and (ii) of Section 3(g), which shall have independent application~~same day.

Appears in 1 contract

Samples: Equity Distribution Agreement (Gladstone Capital Corp)

Sale and Delivery of Shares. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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 the ~~Agent~~Manager, ~~acting~~ as sales agent, and the ~~Agent~~ Manager 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 agreed to by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the NYSE (~~other than~~ a ~~day on which the NYSE is scheduled to close prior to its regular weekday closing time~~“Trading Day”), (B) the Company has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic ~~mail~~mail to any of the individuals listed as authorized representatives of the Company on Schedule C hereto (the “Authorized Company Representatives”)) to make such sales and (C) the Company has satisfied its obligations under Section 6 5 of this Agreement. The Company will designate the maximum ~~amount~~ number of ~~the~~ Shares to be sold by the ~~Agent~~ Manager daily or as ~~previously~~ otherwise agreed to ~~in writing or electronic transmission~~ by the ~~Agent (~~Manager and the Company and in any event not in excess of ~~(i)~~ the amount of Shares available for issuance under the ~~Prospectus and the~~ currently effective Registration Statement ~~less (ii) any amounts already~~ or in excess of the amount of Shares authorized from time to time to be issued and sold ~~pursuant to~~ under this Agreement ~~and~~ by the ~~Alternative Equity Distribution Agreements)~~ Company’s board of directors, or a duly authorized committee thereof, and the minimum price per ~~Share~~ share at which such Shares may be sold. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its commercially reasonable efforts to offer and sell on ~~a particular day, consistent with its normal trading practices,~~ any day all of the Shares designated for the sale by the Company on such day~~. The gross sales price of~~ ; provided, however, that the ~~Shares sold under this Section 3(a)~~ Manager shall be have no obligation to offer or sell any Shares, and the market price for shares of the Company’s Common Stock sold by the Agent under this Section 3(a) at the time of 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 the Manager shall have no such obligation, in the event an offer or sale of the Shares on behalf of the Company may 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 an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act. (Aii) ~~there can~~ Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the Manager by telephone (confirmed promptly by electronic mail from the Company) not to sell the Shares if such sales cannot be ~~no assurance that~~ effected at or above the ~~Agent will~~ price designated by the Company in any such instruction, which price shall not be ~~successful in selling~~ below the ~~Shares~~par value of the Common Stock. In addition, ~~(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 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 Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic ~~mail~~mail from such party), suspend the offering of the ~~Shares for any reason and at any time~~Shares; provided, however, that such suspension ~~or termination~~ shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. ~~iv.~~ (iii) The ~~Agent~~ Manager 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 ~~ordinary brokers’ transactions between members of~~ “at the ~~NYSE that qualify for delivery of a Prospectus~~ market” offerings as defined in ~~accordance with~~ Rule ~~153~~ 415 under the ~~Act (such transactions are hereinafter referred to as “Continuous Offerings”)~~Act, ~~(2)~~ 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, 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 agreed by the Company and the ~~Agent pursuant~~ Manager, including but not limited to ~~a Terms Agreement~~in privately negotiated transactions. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company under this Agreement, 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~~2.00% of the gross sales price of 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 documented transaction fees imposed on the ~~Agent~~ Manager by any governmental or self-regulatory organization in ~~respect of~~ connection with such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). ~~vi.~~ (v) The ~~Agent~~ Manager shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ as soon as practicable following the close of trading on the NYSE each day in which the Shares are sold under this Section 3(a) ), but in any event no later than the opening of the immediately following Trading Day, setting forth the aggregate number of the Shares sold on such day, the aggregate gross sales proceeds and the aggregate Net Proceeds to the Company, and the aggregate compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business~~ second 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 ~~day~~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 ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the ~~Agent~~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 return for payments in same day funds delivered to the account designated by the Company. If the ~~Company~~ Company, or its transfer agent (if applicable) ), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. ~~If the Agent breaches this Agreement by failing to deliver the Net Proceeds~~ The Authorized Company Representatives, or any designees thereof as notified to the Manager in writing, shall be the contact persons for the Company ~~on any~~ 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 for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (as defined ~~in Section 4(k)) and Filing Date (as defined in Section 4(a)~~below), the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement as if such representation and warranty were made as of such date~~Agreement, modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the ~~continuing~~ accuracy of the representations and warranties of the Company ~~herein~~herein as of each Time of Sale, Settlement Date and Representation Date, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 5 of this Agreement. (bi) If the ~~Company~~ Company, at its discretion, 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~~ Manager on a principal basis (each, a “Placement”), it will notify the ~~Agent~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent and~~ Manager, the Company and, if applicable, the Alternative Managers will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Manager unless and until the Company and the ~~Agent~~ 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 any Terms Agreement, the terms of such Terms Agreement will control. (cii) ~~Each~~ In the event the Company engages the Manager for a sale of ~~the~~ Shares ~~to the Agent shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for~~ that would constitute the sale of ~~such Shares to~~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 ~~purchase thereof by,~~ Manager will agree to compensation that is customary for the ~~Agent. A Terms Agreement may also specify certain provisions relating~~ Manager with respect to ~~the reoffering of~~ such Shares by the Agent. The commitment of the Agent 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 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 (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 Agenttransactions. (dc) (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 ~~value~~ gross sales proceeds or the aggregate number of the Shares sold pursuant to this ~~Agreement, the~~ Agreement and any Alternative Equity Distribution ~~Agreements and any Terms~~ Agreement would exceed the lesser of (iA) the Maximum Amount, (iiB) the ~~number of shares of the Common Stock~~ amount available for ~~issuance~~ offer and sale under the currently effective Registration Statement or and (~~iii~~C) the ~~number and aggregate~~ amount ~~of the Shares~~ authorized from time to time to be issued and sold under this Agreement and any Alternative Equity Distribution Agreement by the ~~Board~~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 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 ~~Agent~~ Manager in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Medical Properties Trust Inc)

Sale and Delivery of Shares. (a) ~~Subject~~ Upon the basis of the representations and warranties and subject to the terms and conditions ~~and in reliance upon the representations and warranties~~ herein set forth, the Company agrees to issue and sell to the respective Underwriters, and each of the Underwriters, severally and not jointly, agrees to purchase from the Company the number of Firm Shares set forth opposite the name of such Underwriter in Schedule A attached hereto, subject to adjustment in accordance with Section 7 hereof at a purchase price of $0.9025 per Share, less an amount per Share equal to any dividends or other distributions declared by the Company and payable on the Firm Shares but not payable on the Additional Shares. The Company is advised by the Representatives that the Underwriters will (i) make a public offering of their respective portions of the Firm Shares as soon after the effectiveness of this Agreement as in the Representatives’ judgment is advisable and (ii) initially offer the Firm Shares upon the terms and conditions set forth in the Prospectus. The Representatives may from time to time ~~through~~ increase or decrease the Agent, acting as sales agent, and the Agent agrees to use its reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. i. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Agent daily as previously agreed to in writing or electronic transmission by the Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) 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 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 public offering price of the Shares ~~sold under this Section 3(a) shall be~~ after the market price for shares of the Company’s Common Stock sold by the Agent under this Section 3(a) at the time of 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 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 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 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 initial public 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. iv. The Agent 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) (1) by 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 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 agreed by the Company and the Agent pursuant to a Terms Agreement. v. The compensation to the 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 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 for such Shares (the “Net Proceeds”). vi. The Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the Agent with respect to such ~~sales. Such compensation shall be set forth and invoiced in periodic statements from~~ extent as the Agent to the Company, with payment to be made by the Company promptly after its receipt thereof. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementRepresentatives may determine. (b) If In addition, 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 grants to the ~~Agent shall be made in accordance with~~ several Underwriters the ~~terms of this Agreement and, if applicable, a Terms Agreement, which will provide for~~ option (the ~~sale of such~~ “Additional Shares toOption”) to purchase, and the purchase thereof by, the 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 be deemed to have been made on upon 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~~ , the Underwriters shall ~~specify~~ have the right to purchase, severally and not jointly, from the Company ratably in accordance with the number of ~~the~~ Firm Shares to be purchased by each of them, all or a portion of the ~~Agent pursuant thereto,~~ Additional Shares at the same purchase price per share to be paid by the Underwriters to the Company for ~~such~~ the Firm Shares~~, any provisions relating to rights of, and default by, underwriters acting together with~~ . The Additional Shares Option may be exercised by the ~~Agent in the reoffering~~ Representatives on behalf of the ~~Shares, and the~~ several Underwriters at any 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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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~~ on or before the thirtieth day following the date of this Agreement by ~~the Board, or a duly authorized committee thereof, and notified~~ written notice to the ~~Agent in writing. (e) Except pursuant to a reoffer~~ Company. Such notice shall set forth the aggregate number of Additional Shares as ~~described in Section 3(c) hereof,~~ to which the ~~Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of~~ Additional Shares ~~shall 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,~~ Option is being exercised and the ~~Company shall in no event request that~~ date and time when the ~~Agent~~ Additional Shares are to be delivered (any such date and ~~any~~ time being herein referred to as an “Additional Time of ~~the Alternative Agents sell Shares on the same day~~Purchase”); provided, however, that no Additional Time of Purchase shall be earlier than the Time of Purchase (aas defined below) or later than the ~~foregoing limitation~~ tenth business day after the date on which the Additional Shares Option shall ~~not apply~~ have been exercised. The number of Additional Shares to ~~(i)~~ be sold to each Underwriter shall be the ~~exercise~~ number which bears the same proportion to the aggregate number of ~~any option, warrant, right or any conversion privilege~~ Additional Shares being purchased as the number of Firm Shares set forth in opposite 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~~ name of such ~~persons~~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 ~~(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~~adjustment in accordance with Section 7 hereof). (fc) ~~If either~~ 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 ~~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~~ Firm Shares to the ~~Shares, it shall promptly notify~~ Representatives through the ~~other party and sales~~ facilities of The Depository Trust Company for the respective accounts of the ~~Shares under this Agreement~~ Underwriters. Such payment and ~~any Terms Agreement~~ delivery shall be ~~suspended until that or other exemptive~~ made at 10:00 A.M., New York City time, on September 17, 2019 (unless another time shall be agreed to by the Representatives and the Company, unless postponed in accordance with the provisions ~~have been satisfied~~ 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 ~~judgment of each party~~Representatives shall specify. (gd) ~~Notwithstanding any other provision~~ Payment of ~~this Agreement,~~ the ~~Company~~ purchase price for the Additional Shares shall ~~not offer, sell or deliver, or request~~ be made at the ~~offer or sale of, any~~ 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 ~~and, by notice~~ shall be made to the ~~Agent given by telephone~~ Representatives at the Additional Time of Purchase in such names and in such denominations as the Representatives shall specify. (~~confirmed promptly by telecopy or email)~~e) Each of the Representatives individually and not as representatives of the Underwriters, ~~shall cancel any instructions for the offer or sale of any Shares, and the Agent~~ may (but shall not be obligated ~~to offer~~ to) make payment of the purchase price for the Firm Shares or ~~sell any~~ the Additional Shares, ~~(i) during~~ if any, to be purchased by any ~~period in which~~ Underwriter whose funds have not been received by the ~~Company is,~~ Time of Purchase or ~~could be deemed to be, in possession~~ any applicable Additional Time 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 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 periodsPurchase, as the case may be, ~~covered by~~ but such ~~Earnings Announcement~~payment shall not relieve such Underwriter from its obligations hereunder. (hf) If Deliveries of 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 documents described in Section 5 hereof with respect 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 purchase of the ~~Agent to~~ Shares shall be made at the ~~filing thereof (such consent not to be unreasonably withheld)~~offices of Xxxxxx, ~~(ii) provide~~ Xxxx & Xxxxxxxx LLP at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, at 10:00 A.M., New York City time, at the ~~Agent with the officers’ certificate, accountants’ letter and opinions and letters~~ Time 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 (orPurchase and, if ~~later~~applicable, ~~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~~ any Additional Time of ~~the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K~~Purchase, 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Underwriting Agreement (Contango Oil & Gas Co)

Sale and Delivery of Shares. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, and 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~~ through or to ~~time through~~ the ~~Agent~~Managers, ~~acting~~ as sales ~~agent~~agents and/or principals, as and when it provides instructions, in its discretion, for the sale of the Shares, and ~~the Agent~~ 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. (i) The Shares are to be sold by one of the Managers on a daily basis or otherwise as shall be mutually agreed to upon by the Company and the ~~Agent~~ 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, as such Schedule B may be amended from time to time (the “Authorized Representatives”), has instructed such Manager (with notice of such instruction to each of the ~~Agent by telephone (confirmed promptly by electronic mail~~other Authorized Representatives at such time) to make such sales and (CB) the Company has satisfied its obligations under ~~Section~~ Sections 4, 5 and 6 ~~of this Agreement~~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 substantially in the form attached hereto as Exhibit 3(a)(i) or (y) by telephone (confirmed promptly by electronic mail substantially in the form attached hereto as Exhibit 3(a)(i)) the maximum amount of the Shares to be sold by ~~the Agent~~ such Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by ~~the Agent~~ such Manager (in any event the Company shall not instruct such Manager to sell Shares in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the ~~currently effective~~ Registration Statement ~~less (ii) any amounts already~~ 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, any minimum price below which sales of the Shares may not be 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 ~~Agreement and~~ Section 3(a) is referred to as the ~~Alternative Equity Distribution Agreements) and~~ “Selling Manager”. For the ~~minimum price per Share at~~ 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 ~~such Shares may be sold~~Barclays, Xxxxxxx Xxxxx, HSBC, MUFG or TD Securities is acting for the Company in a capacity other than as Manager under this Agreement. Subject to the terms and conditions ~~hereof~~of this Section 3(a), the ~~Agent~~ Managers may sell the Shares by any method permitted by law including, without limitation, an “at the market offering” as defined in Rule 415 under the Act or sales made by means of ordinary brokers’ transactions, to or through a market maker at market prices prevailing at the time of sale, at prices related to prevailing market prices or 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 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 ~~on a particular day, consistent with its normal trading practices,~~ all of the Shares ~~designated for~~ designated; provided, however, that the ~~sale by~~ Managers shall have no obligation to offer or sell any Shares, and 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) at the time of 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 the Managers shall have no such obligation, in the event that an offer or sale of the Shares on behalf of the Company may in the 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 means of ordinary brokers’ transactions between members of the Nasdaq that qualify for delivery of a Prospectus to the Nasdaq in accordance with Rule 153 under the Act. (Aii) ~~there can~~ Notwithstanding the foregoing, the Company, through any of the Authorized Representatives, may instruct the Managers (confirmed promptly by electronic mail) not to sell the Shares if such sales cannot be ~~no assurance that~~ effected at or above the ~~Agent will be successful~~ price designated by the Company in ~~selling the Shares~~any such instruction. In addition, ~~(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 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 Manager may, upon notice to the other ~~party~~ parties hereto ~~by telephone~~ (confirmed promptly by electronic mail), suspend the offering of the Shares for ~~any reason and at any time~~a specified period (a “Suspension Period”); provided, however, that such ~~suspension or termination~~ 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~~notice and provided, further, that there shall be no obligations under Sections 4(n), 4(o), 4(p) and 4(q) with respect to the delivery of certificates, opinions, or comfort letters to the Managers during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period. ~~iv. The Agent~~ (iii) Each of the Managers 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 ~~ordinary brokers’ transactions between members of~~ At the 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 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 Agent pursuant to a Terms Agreement~~such Manager. v. (iv) The compensation to each Manager, as an agent of the ~~Agent~~ Company, 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 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 for such Shares (the “Net Proceeds”). ~~vi. The Agent~~ (v) If acting as sales agent hereunder, each Manager shall provide written confirmation to the Company (which may be by ~~facsimile or~~ electronic mail) ~~to the Company promptly~~ as soon as is reasonably practicable following the close of trading on the ~~NYSE~~ Nasdaq each day in which the Shares are sold ~~under~~ pursuant to this Section 3(a) setting forth (i) the number of ~~the~~ Shares sold on such day, ~~the aggregate gross sales proceeds and~~ (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to ~~the Agent~~ such Manager 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~~. ~~vii.~~ (vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business Day~~ second business day that is also a trading day on the Nasdaq following the date on which such sales are made (each such ~~day~~date, a “Settlement Date”). On each Settlement Date, the Shares sold through ~~the Agent~~ a Manager for settlement on such date shall be issued and delivered by the Company to ~~the Agent~~ such Manager against payment of the Net ~~Proceeds~~ Proceeds, or, at such Manager’s election, the gross proceeds, for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to such Manager’s account, or to the ~~Agent~~account of such Manager’s ~~account~~ designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DTC”) 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 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~~ Company, or its transfer agent (if applicable) ), shall default on 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 Agent~~ such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay ~~the Agent~~ such Manager any commission to which it would otherwise be entitled absent such default. If Any Authorized Representative shall be a permissible contact person for the ~~Agent breaches this Agreement by failing to deliver the Net Proceeds~~ Company for all matters related to the ~~Company on any Settlement Date for~~ settlement of the transfer of the Shares ~~delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent~~through DTC for purposes of this Section 3(a)(vi). ~~viii.~~ (vii) At each ~~Applicable Time, Settlement Date,~~ Representation Date ~~(as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)),~~ the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement 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~~Agreement. Any obligation of ~~the Agent~~ any Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 ~~of this Agreement~~hereof. (b) 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) hereof, it will notify a Manager of ~~this Agreement~~ the proposed terms of such issuance and sale (each, a “Placement”)~~, it will notify the Agent of the proposed terms of such Placement~~. If ~~the Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent~~ Company and ~~the Company~~ such Manager will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 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 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 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 proceeds, number or minimum price of Shares duly authorized by the Company. (d) Each sale of the Shares through or to ~~the Agent~~ any Manager shall be made in accordance with the terms of this Agreement ~~and~~or, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Agent. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Agent. The ~~commitment of the Agent~~ applicable Manager’s commitment, if any, to purchase Shares from the ~~Shares pursuant to any Terms Agreement~~ 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. ~~Each~~ At the time of each Terms ~~Agreement~~ Agreement, the applicable Manager shall specify the ~~number of~~ requirements, if any, for 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 (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~~ certificate, opinions and letters of counsel and comfort letters 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 sold pursuant to this Agreement, the Alternative Equity Distribution Agreements and any Terms Agreement exceed (i) the Maximum Amount4(n), (iio) ~~the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or~~ and (~~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~~q), ~~or a duly authorized committee thereof~~respectively, ~~and notified to the Agent in writing~~hereof. (e) ~~Except pursuant~~ Subject to ~~a reoffer of Shares~~ the limitations set forth herein and as ~~described in Section 3(c) hereof,~~ may be mutually agreed upon by the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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~~Managers, ~~however, that (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii)~~ sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made effected pursuant to this Agreement ~~or an Alternative Equity Distribution Agreement. (f) If either~~ may not be requested by 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, 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. (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 need not be ~~obligated to offer or sell~~ made by any ~~Shares,~~ Manager (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 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) at any time from and including an Announcement Date through and including the ~~time that is 24 hours after~~ later to occur of (A) the ~~time~~ trading day following the day 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, and (B) 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. For the avoidance of doubt, the Company and the Managers may mutually agree from time to time that sales may be effected pursuant to this Agreement following an Earnings Announcement and the applicable Bring-Down Delivery Date of the Company referenced in Section 4(n) below, notwithstanding the fact that the condition in (ii)(A) of this subsection (e) has not been satisfied, subject to the satisfaction of the other terms and conditions contained in this Agreement. (hf) ~~If the~~ The Company ~~wishes to offer, sell or deliver Shares at any time during the period from~~ acknowledges and ~~including an Announcement Date through and including the time~~ agrees that ~~is 24 hours after the corresponding Filing Time, the Company shall~~ (i) ~~prepare and deliver to~~ there can be no assurance that any Manager will be successful in selling 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)Shares, (ii) ~~provide~~ no Manager will incur liability or obligation to the ~~Agent~~ 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 ~~officers’ certificate~~terms of this Agreement, ~~accountants’ letter~~ and ~~opinions and letters of counsel called for by Sections 4(k), (l), (m) and (n) hereof; respectively,~~ (iii) ~~afford~~ 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 ~~Agent~~ Company pursuant to a Terms Agreement. (g) If any of the ~~opportunity~~ Company or the Managers has reason to ~~conduct a due diligence review~~ believe that the exemptive provisions set forth in ~~accordance with Section 4(o) hereof and (iv) file such Earnings 8-K with the Commission, then the provisions of clause (iii~~Rule 101(c)(1) of ~~Section 3(g)~~ Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall ~~not~~ promptly notify the other parties, and sales of the Shares under this Agreement shall be ~~applicable for the period from and after the time at which the foregoing conditions shall~~ suspended until that or other exemptive provisions have been satisfied ~~(or, if later,~~ in 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~~ judgment 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) of Section 3(g), which shall have independent applicationeach party.

Appears in 1 contract

Samples: Equity Distribution Agreement (Equinix Inc)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to (i) issue and sell Issuance Shares through the applicable Agent acting as sales agent or directly to the applicable Agent or Agents acting as principal from time to time and (ii) offer Forward Hedge Shares through the ~~Agent, acting as sales agent,~~ Forward Purchasers and the ~~Agent agrees~~ Forward Sellers from time to ~~use its reasonable efforts~~ time. Sales of the Shares, if any, will be made (1) by any method permitted by law to ~~sell~~be an “at the market offering” as defined in Rule 415 under the 1933 Act, as including sales ~~agent~~ made directly on or through the NYSE or on another market for the Company’s common stock, sales made to or through a market maker other than on an exchange, or through an electronic communications network (such transactions referred to as “At the ~~Shares on~~ Market Offerings”), or (2) in privately negotiated transactions (if and only if the ~~following terms~~parties thereto shall have so agreed in writing), including sales to an Agent as principal in accordance with Section 2(p) hereof (such transactions referred to as “Non-ATM Offerings”). i. (b) The Issuance Shares are to be sold to an Agent on ~~a daily~~ an agented basis ~~or otherwise as shall be agreed to by the Company and the Agent~~ on any day ~~that (A) is a trading day for~~ when the NYSE is scheduled to be open (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), unless such Agent otherwise agrees) (Beach, a “Trading Day”) on which (i) the Company has instructed ~~the~~ such Agent ~~by telephone (confirmed promptly by electronic mail)~~ to make such sales and (Cii) the Company has satisfied its ~~obligations under Section 6 of this Agreement~~covenants and conditions specified in Sections 3 and 5 hereof. ~~The~~ On any Trading Day, the Company ~~will designate the maximum amount of the~~ may sell Issuance Shares through only one Agent and, if it determines to ~~be sold~~ do so, shall do so by the ~~Agent daily as previously~~ delivery of a notice to such Agent, by an email (or other method mutually agreed to in writing ~~or electronic transmission~~ by the ~~Agent (~~parties) containing the parameters in ~~any event not in excess~~ accordance with which it desires the Issuance Shares to be sold, which shall specify the time period during which sales may be made, the maximum number of ~~(i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less (ii) any amounts already issued and sold pursuant~~ Issuance Shares to ~~this Agreement and the Alternative Equity Distribution Agreements) and~~ be sold, the minimum price ~~per Share at~~ below which sales may not be made and the applicable commission (an “Agent Instruction”), a form of which containing such ~~Shares may be sold.~~ necessary information attached hereto as Exhibit D. Subject to the terms and conditions ~~hereof~~specified herein (including, without limitation, the accuracy of 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 5 hereof), unless such Agent declines to act on such Agent Instruction (which it may do for any reason in its sole discretion), such Agent shall use its commercially reasonable ~~efforts to sell on a particular day~~efforts, 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) at the time of 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 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 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~~ regulations, to sell all of the Issuance Shares so designated in the Agent Instruction as sales agent in accordance with such instruction. On any Trading Day, the Company shall give at least one business day’s prior written notice by telecopy or email to the Agent (through whom sales of Issuance Shares as ~~required under this Agreement, and (C~~sales agent were most recently made) 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~~ (through whom sales of Issuance Shares as sales agent will be made) as to any change of the Agent through whom sales of Issuance Shares as sales agent will be made. Without limiting any Agent’s obligations under any Terms 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 Issuance Shares and (B) the Agents will not ~~be obligated to use its reasonable efforts to sell,~~ incur 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”),~~ liability or ~~a duly authorized committee thereof, and notified~~ obligation to the ~~Agent in writing. The~~ Company ~~or the Agent may, upon notice~~ if they fail to ~~the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the~~ sell Issuance 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. iv. The Agent 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) (1) by 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 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 agreed by the Company and the Agent pursuant to a Terms Agreement. v. The compensation to the 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 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 for such Shares (the “Net Proceeds”). vi. The Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent failure to use ~~its~~ their respective commercially reasonable ~~efforts~~ efforts, consistent with their respective normal trading and sales practices and applicable law and regulations, to sell ~~the~~ such Issuance Shares ~~on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance~~ as required by ~~the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of~~ this Agreement. (bc) If On any Trading Day during the ~~Company wishes to issue and sell~~ Commitment Period on which the ~~Shares pursuant to this Agreement and the Alternative Equity Distribution Agreements but other than as~~ conditions set forth in Section ~~3(a) of this Agreement~~ 5 hereof have been satisfied, the Company may cause to be sold the Forward Hedge Shares hereunder (~~each,~~ each a “Placement”), by the delivery of a notice to a Forward Seller and the applicable Forward Purchaser, by an email (or other method mutually agreed to in writing by the parties) containing the parameters in accordance with which it ~~will notify~~ desires the ~~Agent~~ Forward Hedge Shares to be sold, which shall specify the maximum number of Forward Hedge Shares to be sold (the “Placement Shares”), the time period during which sales are requested to be made, any limitation on the number of Forward Hedge Shares that may be sold in any one day, any minimum price below which sales may not be made or a formula pursuant to which such minimum price shall be determined, the applicable commission and, as applicable, certain specified terms of the ~~proposed~~ Forward (a “Placement Notice”), a form of which containing such necessary information is attached hereto as Exhibit E. Along with the Placement Notice, the Company shall deliver a duly executed Master Forward Confirmation (if one has not already been executed between the Company and the relevant Forward Purchaser), with terms of corresponding to such Placement. If ~~the Agent, acting as principal, wishes~~ a Forward Seller and a Forward Purchaser wish to accept ~~such~~ the proposed terms included in the Placement Notice and the Master Forward Confirmation (which it they may decline to do for any reason in ~~its~~ their sole discretion) or, following ~~discussions~~ discussion with the ~~Company wishes~~ Company, wish to accept amended terms, ~~the Agent~~ such Forward Seller and Forward Purchaser, as applicable, will issue to the Company ~~will enter into~~ a ~~Terms Agreement,~~ notice by email (or other method mutually agreed to in ~~substantially~~ writing by the ~~form of Annex I~~ parties hereto, ) setting forth the terms of that such ~~Placement~~Forward Seller and Forward Purchaser are willing to accept. ~~The~~ Where the terms ~~set forth~~ provided in ~~a Terms Agreement~~ the Placement Notice are amended as provided for in the immediately preceding sentence, such terms will not be binding on the Company or ~~the Agent unless~~ a Forward Seller and Forward Purchaser until the Company ~~and the Agent have each executed such Terms Agreement accepting~~ confirms its acceptance of all of the terms of such ~~Terms Agreement~~Placement Notice, as amended, by email or telephone, with confirmation to be provided promptly thereafter by email (or other method mutually agreed to in writing by the parties hereto), along with, to the extent necessary, a duly executed amended Master Forward Confirmation with terms corresponding to such amended Placement. In The Placement Notice (as amended by the ~~event~~ corresponding Acceptance, if applicable) shall be effective upon receipt by the Company of a ~~conflict between~~ Forward Seller’s and Forward Purchaser’s acceptance of the terms of the Placement Notice or upon receipt by a Forward Seller and Forward Purchaser of the Company’s Acceptance, as the case may be, unless and until (i) the entire amount of the Placement Shares has been sold, (ii) in accordance with the requirements herein, the Company terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those in the earlier dated Placement Notice, (iv) this Agreement has been terminated or (v) any party hereto shall have suspended the sale of the Placement Shares in accordance with this Agreement. On any Trading Day, the Company may direct the sale of Placement Shares through only one Forward Seller. No Placement Notice may be delivered if an ex-dividend date or ex-date, as applicable for any dividend or distribution payable by the Company on the Common Stock, is scheduled to occur during the period from, and including, the first scheduled Trading Day of the related Forward Hedge Selling Period to, and including, the last scheduled Trading Day of such Forward Hedge Selling Period. No Selling Period hereunder may overlap in whole or in part with any “Unwind Period” under any Confirmation (as defined in such Confirmation). No Placement Notice relating to a Forward may be delivered if such Placement Notice, together with all prior Placement Notices (as amended by the corresponding Acceptance, if applicable) delivered by the Company relating to a Forward hereunder, would result in the aggregate Capped Number under all Confirmations entered into or to be entered into between the Company and the ~~terms~~ Forward Purchasers exceeding 19.99% of ~~a Terms~~ the number of shares of Common Stock outstanding as of the date of this Agreement~~, the terms of such Terms Agreement will control~~. (cd) ~~Each sale~~ No later than the opening of the ~~Shares to~~ Trading Day next following the ~~Agent shall be made~~ last Trading Day of each Forward Hedge Selling Period (or, if earlier, the date on which any Forward Hedge Selling Period is terminated in accordance with the terms of this Agreement ~~and, if applicable, a Terms Agreement, which will provide for~~ or the ~~sale of such Shares to, and the purchase thereof by~~Master Forward Confirmation), the ~~Agent. A Terms Agreement may also specify certain provisions relating~~ Forward Purchaser shall execute and deliver to the reoffering of such Shares by the Agent. The commitment of the Agent 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one of the Agent or an Alternative Agent on any single given day, but in no event by more than oneCompany, and the Company shall execute and return to the Forward Purchaser, a “Supplemental Confirmation” (in ~~no event request that~~ the Agent and any of the Alternative Agents sell Shares on the same day; provided, however, that (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege form set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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 Schedule A 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. (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 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’ quotationsapplicable Master Forward Confirmation) (each, an a “~~Earnings 8-K~~Supplemental Confirmation”) in respect of the Forward for such Forward Hedge Selling Period, which Supplemental Confirmation shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), ~~in form and substance reasonably satisfactory~~ the “Effective Date” for such Forward (which shall, subject to the ~~Agent, and obtain the consent~~ terms of the ~~Agent~~ Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall, subject to the ~~filing thereof (~~terms of the Master Forward Confirmation, be the Actual Sold Forward Amount for such ~~consent not to be unreasonably withheld~~Forward Hedge Selling Period), the “Maturity Date” for such Forward (iiwhich shall, subject to the terms of the applicable Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days, months or years set forth opposite the caption “Term” in the Placement Notice for such Forward, which number of days, months or years shall in no event be less than two (2) ~~provide the Agent with the officers’ certificate, accountants’ letter and opinions and letters of counsel called for by Sections 4(k~~months nor more than eighteen (18) months), the “Forward Price Reduction Dates” for such Forward (lwhich shall be each of the dates set forth below the caption “Forward Price Reduction Dates” in the Placement Notice for such Forward), the “Forward Price Reduction Amount” corresponding to such Forward Price Reduction Dates (m) which shall be each amount set forth opposite each “Forward Price Reduction Date” and ~~(n) hereof; respectively, (iii) afford~~ below the ~~Agent~~ caption “Forward Price Reduction Amounts” in the ~~opportunity to conduct a due diligence review in accordance with Section 4(o) hereof and (iv) file~~ Placement Notice for 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 laterForward), 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~~ “Regular Dividend Amounts” for such Forward (which shall be each of the ~~relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as~~ amount(s) set forth below the ~~case may be. For purposes of clarity~~caption “Regular Dividend Amounts” in the Placement Notice), the ~~parties hereto agree that~~ “Spread” for such Forward (A) which shall be the ~~delivery of any officers’ certificate, accountants’ letter and opinions and letters of counsel pursuant to this Section 3(h) shall not relieve~~ amount set forth opposite 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~~ term “Spread” in the ~~case may be, including, without limitation~~Placement Notice), the ~~obligation to deliver officers’ certificates, accountants’ letters and legal opinions and letters~~ “Initial Forward Price” for such Forward (which shall be determined as provided in ~~Section 4 hereof and~~ the Master Forward Confirmation), the “Adjusted Volume-Weighted Hedge Price,” the “Initial Stock Loan Rate” (~~B) this Section 3(h)~~ which shall be the rate set forth opposite the term “Initial Stock Loan Rate” in ~~no way affect or limit~~ the ~~operation of~~ Placement Notice), the ~~provisions of clauses~~ “Maximum Stock Loan Rate” (iwhich shall be the rate set forth opposite the term “Maximum Stock Loan Rate” in the Placement Notice) and ~~(ii)~~ the “Threshold Number of ~~Section 3(g), which shall have independent application~~Shares.”

Appears in 1 contract

Samples: Equity Distribution Sales Agreement (Ameren Corp)

Sale and Delivery of Shares. (a) 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 the ~~Agent~~Manager, acting as sales agent, and the ~~Agent~~ Manager 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 agreed to by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the ~~NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)~~NYSE, (B) the Company has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the ~~Agent~~ Manager (daily or otherwise) as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its commercially reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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~~ Shares sold by the ~~Agent~~ Manager under this Section 3(a) on the NYSE at the time of 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)~~Shares. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Manager will be successful in selling the Shares, (B) the ~~Agent~~ Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the ~~Agent~~ Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the ~~Agent~~ Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Manager and the Company. (iii. ) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ 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 the ~~Agent~~ Manager in writing. The Company or the ~~Agent~~ Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for 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 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. (iv~~. The Agent~~ ) 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~~ Company, pursuant to this Section 3(a), ~~other than~~ will be made by (A) ~~(1)~~ any method permitted by ~~means of ordinary brokers’ transactions between members of~~ law deemed to be an “at the ~~NYSE that qualify for delivery of a Prospectus~~ market” offering as defined in ~~accordance with~~ Rule ~~153~~ 415 under the ~~Act (such transactions are hereinafter referred to as “Continuous Offerings”)~~Act, ~~(2)~~ 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,~~ 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~~ by any other ~~sales~~ method permitted by law, including but not limited to privately negotiated transactions. (v) The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as agent, in connection with the sale of the Shares ~~on behalf of the Company in its capacity as agent of the Company as~~ shall be ~~agreed by the Company and the Agent pursuant~~ up to a Terms Agreement. v. The compensation to the 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 2.02.00% of the gross sales price of the Shares sold pursuant to this Section 3(a~~) and payable as described in the succeeding subsection (vi) below~~). The ~~foregoing rate~~ amount of any commission, discount or other compensation ~~shall not apply~~ to be paid by the Company to the Manager, when ~~the Agent acts~~ Manager is acting as principal, in ~~which case~~ connection with the ~~Company may sell~~ sale of the Shares to shall be as separately agreed among the ~~Agent as principal at a price agreed upon~~ parties hereto at the ~~relevant Applicable Time pursuant to a Terms Agreement~~time of any such sales. 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,~~ proceeds shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi. ) The ~~Agent~~ Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company ~~promptly~~ following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the ~~Agent~~ Manager 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~~. (vii. ) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business Day~~ second business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to ~~the~~ an account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. (viii. ) At each Applicable Time, Settlement ~~Date,~~ Date and Representation Date (as defined in Section 4(k~~)) and Filing Date (as defined in Section 4(a~~)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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 ~~Agent~~ Manager and the Company will enter into a ~~Terms Agreement, in substantially the form of Annex I hereto,~~ separate terms agreement or underwriting or similar agreement setting forth the terms of such Placement. ~~The~~ A 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 Agent 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 Agent. A Terms Agreement agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Manager. The commitment of the ~~Agent~~ Manager to purchase the Shares pursuant to any ~~Terms Agreement~~ 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~~ terms agreement shall specify the number of the Shares to be purchased by the ~~Agent~~ 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 ~~Agent~~ 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~~ 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~~Manager. (dc) 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 ~~value~~ offering price of the Shares sold pursuant to this ~~Agreement,~~ Agreement would exceed the lesser of (i) together with all sales of Shares under this Agreement and each of the Alternative Equity Distribution ~~Agreements and any Terms Agreement exceed (i)~~ Agreements, the Maximum Amount, and (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 ~~Agent~~ Manager in writing~~. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof,~~ . Under no circumstances shall the Company ~~agrees that any~~ cause or request the offer ~~to sell Shares, any solicitation of an offer to buy Shares,~~ or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise sale of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the by the Board, or an 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 ~~Agreement~~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. (fd) If ~~either~~ any of the ~~Company or the Agent~~ 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 ~~party~~ 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. (ge) 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 any other provision of this Agreement, the Company agrees that no sales of Shares shall take place, and 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~~ Manager shall not be obligated to ~~offer or sell any Shares~~sell, ~~(i)~~ during any period in which the Company is, or could be deemed to be, in possession of material non-public information; provided that, or notwithstanding the provisions of this paragraph (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 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 Timeg), the Company agrees that no sales of Shares shall take place during the twenty (i20) ~~prepare and deliver~~ calendar days prior to ~~the Agent~~ an Earnings Release (~~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”~~defined below), 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (LTC Properties Inc)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales ~~agent,~~ agent and the 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. i. 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 (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 agreed to by the Company and the 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~~ 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 ~~which the NYSE is scheduled to close~~ 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 ~~regular weekday closing time~~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”), ~~(B) the Company has instructed~~ it will notify the Agent by ~~telephone~~ email notice (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~electronic mail~~the parties) containing the parameters in accordance with which it desires Shares to ~~make~~ 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 (Cwhich 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 ~~Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum~~ entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 reasonable efforts~~ permitted to sell, any ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on Nasdaq or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. ~~The foregoing rate~~ In lieu of ~~compensation shall not apply when the Agent acts as principal, in which case~~ the Company ~~may sell Shares~~ paying all compensation payable to the Agent ~~as principal at a price agreed upon at~~ for the ~~relevant Applicable Time~~ sale of the Shares pursuant to ~~a Terms~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ Nasdaq each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNasdaq. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then currently effective Registration ~~Statement~~ 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 Sales Agreements by the Board, or a duly authorized committee thereof, and notified to the Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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. (gf) ~~Notwithstanding~~ Settlement for sales of Shares pursuant to this Section 4 and made in accordance with the terms of the applicable Acceptance will occur on the second business day that is also a trading day for Nasdaq (other than a day on which Nasdaq is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are 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 day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any ~~other provision of~~ Settlement Date pursuant to this Agreement, the Company shall ~~not offer~~(i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the Agent to use its commercially reasonable efforts to sell ~~or deliver~~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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 Sales 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 Company, but in no event by more than one of them, and the Company shall in no event request that more than one of Agent or the Other Agents sell shares of Common Stock on the same day. (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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer~~ sell, during: 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 ~~sell~~ 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 the Earnings Release and ending on the date of the 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~~Shares that would be sold, ~~(i)~~ and the Agent shall not be obligated to sell, during any period in which the Company ~~is, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Sales Agreement (Gladstone Investment Corporation\de)

Sale and Delivery of Shares. (a) (i) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company ~~agrees to~~ may issue and sell Shares ~~from time to time~~ through the Agent, acting as sales agent for the Company, or directly to the Agent, 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, ~~and the Agent agrees~~ to use its reasonable efforts to ~~sell, as sales agent for the Company,~~ sell the Shares on under a Forward Sale in the ~~following terms~~manner contemplated by the General Disclosure Package. i. (b) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the ~~Company and~~ Company, the 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”) that the Company has satisfied its obligations under Section 4 of this Agreement and that the Company has instructed the Agent to make such sales. On any Trading Day, the Company, in consultation with the Agent and, if applicable, the Forward Purchaser, may instruct the Agent by telephone (confirmed promptly by ~~electronic mail) to make such~~ 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) (Ctogether, the “Instruction”) ~~the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate~~ as to (i) the maximum amount of ~~the~~ Shares to be sold by the Agent ~~daily as previously agreed to in writing or electronic transmission by the Agent~~ on such day (in any event not in excess of ~~(i)~~ the amount then available for ~~issuance~~ sale under the Prospectus and the currently effective Registration ~~Statement less~~ Statement), (ii) ~~any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) and~~ 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 on for the Forward Purchaser or its affiliate (in the case of a ~~particular day, consistent with its normal trading practices,~~ Forward Sale) or for the Company (in the case of a Direct Sale) 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) at the time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share so designated by the Company ~~at which such Shares may be sold). ii~~and in the manner contemplated by the General Disclosure Package. The ~~Company~~ 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~~ 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 ~~under~~ by this Agreement, and (C) the Agent shall be under no obligation to purchase Shares on a principal ~~basis pursuant to this Agreement~~basis, except as ~~otherwise specifically~~ expressly agreed by the Agent ~~and the Company~~in a Terms Agreement. ~~iii. The~~ (c) Notwithstanding the foregoing, the Company shall not authorize the ~~issuance and~~ sale of, and the Agent shall not be obligated to use its commercially reasonable efforts to sell, any ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ authorized from time to time or (ii) having an aggregate offering price in excess of the 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~~ board of ~~Directors (the “Board”)~~directors, or a duly authorized committee thereof, and notified to the Agent in writing. ~~The~~ In addition, the Company or the Agent may, upon notice to the other party hereto by telephone (confirmed promptly by ~~electronic mail~~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 ~~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~~. iv~~. ~~The Agent hereby covenants and agrees not to make any sales of~~ Under no circumstances shall the Shares on behalf of the Company pursuant to this Section 3(a), other than (A) (1) by 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 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 agreed by the Company and the Agent pursuant to a Terms Agreement. v. The compensation to the 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 aggregate offering price of ~~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 for such Shares (the “Net Proceeds”). vi. The Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) If the Company wishes to issue and sell the Shares pursuant to this Agreement and the ~~Alternative~~ Additional Equity Distribution Agreements ~~but other than as set forth in Section 3(a)~~ 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 (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, if 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~~ any Forward Sale either (i) the ~~terms of~~ Forward Purchaser or its affiliate is unable to borrow and deliver any Shares for sale under this Agreement ~~and~~ or (ii) in the ~~terms of a Terms Agreement, the terms of such Terms Agreement will control. (c) Each sale~~ sole judgment of the ~~Shares~~ 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 ~~made in accordance with~~ required to sell on behalf of the ~~terms~~ Forward Purchaser or its affiliate the aggregate number of ~~this Agreement and, if applicable, a Terms Agreement, which will provide for~~ Shares that the ~~sale of such Shares~~ Forward Purchaser or its affiliate is able to, and ~~the purchase thereof by~~that it is practicable to, ~~the Agent. A Terms Agreement may also specify certain provisions relating to the reoffering of~~ so borrow below such Shares by the Agent. The commitment of the Agent 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 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 (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 Agentcost. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the The Company agrees that any offer to ~~sell Shares~~sell, any solicitation of an offer to ~~buy Shares~~buy, or any sales of Shares pursuant to this Agreement or the Additional Equity Distribution Agreements shall ~~only~~ be effected by or through only one of the Agent or ~~an Alternative Agent~~ the Additional Agents 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~~ Additional Agents sell Shares on the same day; provided, however, that (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Affiliated Managers Group, Inc.)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales agent, and the 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. i. 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 (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 agreed to by the Company and the 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~~ 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 ~~which the NYSE is scheduled to close~~ 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 ~~regular weekday closing time~~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”), ~~(B) the Company has instructed~~ it will notify the Agent by ~~telephone~~ email notice (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~electronic mail~~the parties) containing the parameters in accordance with which it desires Shares to ~~make~~ 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 (Cwhich 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 ~~Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum~~ entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 reasonable efforts~~ permitted to sell, any ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on Nasdaq or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. ~~The foregoing rate~~ In lieu of ~~compensation shall not apply when the Agent acts as principal, in which case~~ the Company ~~may sell Shares~~ paying all compensation payable to the Agent ~~as principal at a price agreed upon at~~ for the ~~relevant Applicable Time~~ sale of the Shares pursuant to ~~a Terms~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ Nasdaq each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNasdaq. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then currently effective Registration ~~Statement~~ 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 Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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. (gf) ~~Notwithstanding~~ Settlement for sales of Shares pursuant to this Section 4 and made in accordance with the terms of the applicable Acceptance will occur on the second business day that is also a trading day for Nasdaq (other than a day on which Nasdaq is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are 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 day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any ~~other provision of~~ Settlement Date pursuant to this Agreement, the Company shall (i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the 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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer~~ sell, during: 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 ~~sell any Shares~~annual report on Form 10-K, as applicable, and ending on the date on which (1) the Company files with the Commission a supplement to the 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, or (2) once the Company is able to rely on Rule 430B or an equivalent rule for companies who have elected to be regulated as a business development company under the 1940 Act, the Company files with the Commission its quarterly report on Form 10-Q or its annual report on Form 10-K, as applicable (each such filing referred to in clause (1) or (2) 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 the 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, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Gladstone Capital Corp)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares~~ exclusively through the Agent acting as sales agent (or directly to the Agent acting as principal from time to ~~time through the Agent, acting as sales agent~~time), and the 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 terms~~Company. i. (b) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the 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 has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C)~~ that the Company has satisfied its obligations under Section 6 of this Agreement and that the Company has instructed the Agent to make such sales. 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 such securities for the accounts of such persons in which Xxxxxx Xxxxxxxx is acting for the Company in a capacity other than as Agent under this Agreement. ~~The~~ On any Trading Day, the Company may instruct the Agent by 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 individuals from Xxxxxx Xxxxxxxx set forth on Schedule 2, which confirmation will ~~designate~~ be promptly acknowledged by the Agent) as to the maximum ~~amount~~ number of ~~the~~ Shares to be sold by the Agent ~~daily as previously agreed to in writing or electronic transmission by the Agent~~ on such day (in any event not in excess of ~~(i)~~ the ~~amount~~ number available for issuance under the Prospectus and the ~~currently effective~~ Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be ~~sold~~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 ~~on a particular day, consistent with its normal trading practices,~~ as sales agent 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) at the time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share so designated by the ~~Company at which such Shares may be sold). ii~~Company. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (Ai) there can be no assurance that the Agent will be successful in selling the Shares, (Bii) the Agent will incur no liability or obligation to the Company or any other person or entity if ~~it does~~ 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 ~~under~~ by this Agreement, and (Ciii) the Agent shall be under no obligation to purchase Shares on a principal basis ~~pursuant to this Agreement,~~ except as otherwise specifically agreed by each of the Agent and the ~~Company~~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. ~~iii. The~~ (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 ~~Share~~ Shares pursuant to this Agreement (i) at a price lower than the minimum price therefor ~~designated~~ 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~~ board of ~~Directors (the “Board”)~~directors, or a duly authorized committee thereof, and of which the Company has notified to the Agent in writing. ~~The~~ In addition, the Company may, upon notice to the Agent, suspend the offering of the Shares or the Agent may, upon notice to the ~~other party hereto by telephone (confirmed promptly by electronic mail)~~Company, suspend the offering of the Shares with respect to which the 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 may be given by telephone by any of the individuals from the Company set forth on Schedule 2 (confirmed promptly by email and shall be addressed to each of the individuals from Xxxxxx Xxxxxxxx set forth on Schedule 2, which confirmation will be promptly acknowledged). ~~iv.~~ (d) The ~~Agent hereby covenants and agrees not to make~~ gross sales price per share of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Common Stock sold by the ~~Company and the~~ Agent ~~pursuant to a Terms Agreement. v.~~ on NASDAQ or otherwise. The compensation payable to the 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~~ up to ~~exceed 2.0~~3.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. The ~~foregoing rate of compensation shall not apply when the Agent acts as principal, in which case the~~ Company may only sell Shares to the ~~Agent~~ Agent, acting as ~~principal~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi. The~~ (e) If acting as a sales agent hereunder, the Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ NASDAQ for each day in during which ~~the~~ Shares are sold under this ~~Section 3(a) setting~~ Agreement, which confirmation shall set forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company~~Company from the sale of such Shares, and the compensation payable by the Company to ~~the~~ such Agent with respect to the sale of such ~~sales. Such compensation~~ Shares. (f) Under no circumstances shall be 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 ~~invoiced in periodic statements~~ 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 ~~Company, with payment to be made by the Company promptly after its receipt thereof~~Agent in writing. ~~vii.~~ (g) Settlement for sales of ~~the~~ Shares pursuant to this Section ~~3(a)~~ 2 will occur on the ~~third Business~~ second business day that is also a Trading Day following the trade date on which such ~~sales~~ Shares are ~~made~~ sold, unless another date shall be agreed to by the Company and the Agent (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be ~~issued and~~ delivered by the Company to the Agent against payment of the Net Proceeds ~~for~~ from the sale of such Shares. Settlement for all ~~such~~ Shares shall be effected by ~~free~~ book-entry delivery of ~~the~~ Shares to the Agent’s account at The Depository Trust Company ~~(“DTC”) in return for~~ against payments by the Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to ~~the~~ an account designated by the Company. If the Company ~~or its transfer agent (if applicable)~~ shall default on its obligation to deliver ~~the~~ Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Agent any commission to which it would otherwise be entitled absent such default~~. If~~ . (h) Notwithstanding any other provision of this Agreement, the Company and the Agent ~~breaches this Agreement by failing to deliver the Net Proceeds to~~ agree that no sales of Shares shall take place, and the Company on shall not request the sale of any ~~Settlement Date for~~ Shares, and the ~~Shares delivered by~~ Agent shall not be obligated to sell, during any period in which the Company’s xxxxxxx xxxxxxx policy (as it exists on the date of the Agreement, and as such may be amended from time to time), would prohibit the ~~Agent will pay~~ purchases or sales of the Common Stock by its officers or directors, or during any other period in which the Company ~~interest based~~ is in possession of material non-public information; provided that, unless otherwise agreed between the Company and the Agent, for purposes of this Section 2(h) such period shall be deemed to end on the ~~effective overnight federal funds rate~~ day immediately following the date on ~~such unpaid amount less any compensation due to~~ which the ~~Agent~~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.~~ (i) At each Applicable Time, Settlement Date, ~~Representation~~ Registration Statement Amendment Date (as defined ~~in Section 4(k)~~below) and ~~Filing Date (as defined in Section 4(a))~~each Company Periodic Report Date, the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement 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~~Agreement. Any obligation of the 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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section ~~6 of this Agreement~~6. (b) 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: At the Market Equity Offering Sales Agreement (Endologix Inc /De/)

Sale and Delivery of Shares. (a) 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 ~~Agent~~Managers, acting as sales ~~agent~~agents, and ~~the Agent~~ each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, the Shares on the ~~following terms~~terms 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. (i) The Shares are to be sold by one of the Managers on a daily basis or otherwise as shall be agreed to by the Company and the ~~Agent~~ 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 has instructed ~~the Agent~~ such Manager by telephone ~~(confirmed promptly~~ or by electronic ~~mail)~~ mail to make such sales and (C) the Company has satisfied its obligations under Section 6 of 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 the maximum amount of the Shares to be sold by ~~the Agent~~ such Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by ~~the Agent~~ such Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, ~~the Agent~~ such Manager shall use its commercially reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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 ~~Agent~~ Selling Manager under this Section 3(a) on the Nasdaq at the time of 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)~~Shares. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that ~~the Agent~~ any Manager will be successful in selling the Shares, (B) ~~the Agent~~ no 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 Agent~~ such Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this ~~Agreement,~~ Agreement and (C) ~~the Agent~~ no Manager shall be under no any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by ~~the Agent~~ such Manager and the ~~Company~~Company pursuant to a Terms Agreement. (iii. ) The Company shall not authorize the issuance and sale of, and ~~the Agent~~ no 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 the ~~Agent~~ Managers in writing. The Company or ~~the Agent~~ any Manager may, upon notice to the other party 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. The Managers shall have no responsibility for maintaining records with respect to the 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. (iv. ) The ~~Agent hereby covenants and agrees not~~ Managers may sell shares in negotiated transactions, including block trades, or transactions that are deemed to ~~make any~~ be ‘‘at the market’’ offerings as defined in Rule 415 under the Securities Act of 1933, as amended, or the Securities Act, including sales ~~of the Shares on behalf of the Company pursuant to this Section 3(a), other than (A) (1)~~ made by 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 as “Continuous Offerings”)transactions, ~~(2)~~ including directly on Nasdaq, or sales made to or through a market ~~maker~~maker other than on an exchange at prevailing market prices, at prices related to prevailing market prices or ~~(3) directly on~~ at negotiated prices or ~~through~~ by 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 method permitted by law. No Manager shall purchase Shares ~~on behalf of the Company in~~ for its ~~capacity~~ own account as ~~agent of the Company as shall be agreed~~ principal unless expressly authorized to do so by the Company ~~and the Agent~~ pursuant to a Terms Agreement. v. (v) The compensation to the ~~Agent~~ Selling Manager, as agent of the Company, for sales of the Shares ~~with respect to which the Agent acts as sales agent under this Agreement~~ hereunder shall be ~~at a mutually agreed rate, not~~ equal to ~~exceed 2.0~~2.5% of the gross sales price of 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 ~~the Agent~~ any Manager acts as principal, in which case the Company may sell Shares to ~~the Agent~~ 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 ~~on the Agent~~ by any governmental or self-regulatory organization in respect of such ~~sales~~sales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi~~. The Agent~~ ) Each Selling Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company ~~promptly~~ following the close of trading on the ~~NYSE~~ 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 to the Company, and the compensation payable by the Company to ~~the Agent~~ such Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the ~~Agent~~ applicable Selling Manager to the Company, with payment to be made by the Company promptly after its receipt thereof. (vii. ) Settlement for sales of the Shares pursuant to this Section 3(a) will ~~occur~~ occur, unless the parties agree otherwise, on the ~~third Business~~ first business day that is also a Trading Day following the date on which ~~such~~ any sales ~~are~~ were made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through ~~the Agent~~ a Manager for settlement on such date shall be issued and delivered by the Company to ~~the Agent~~ such Manager against payment of the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to ~~the Agent~~such Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold ~~the Agent~~ such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay ~~the Agent~~ such Manager any commission to which it would otherwise be entitled absent such default. If ~~the Agent~~ a Manager breaches this Agreement by failing to deliver the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees to the Company on any Settlement Date for the Shares delivered by the Company, ~~the Agent~~ such Manager will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to ~~the Agent~~such Manager. (viii. ) At each Applicable Time, Settlement ~~Date,~~ Date and Representation Date (as defined in Section ~~4(k~~4(j)~~) and Filing Date (as defined in Section 4(a~~)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent~~ any Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of 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 ~~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~~ a Manager of the proposed terms of such Placement. If ~~the Agent~~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 Agent~~ such Manager and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 Agent~~ such Manager unless and until the Company and ~~the Agent~~ 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 ~~the Agent~~ 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, ~~the Agent~~such Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by ~~the Agent~~such Manager. The commitment of the ~~Agent~~ 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 ~~Agent~~ 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 Agent~~ 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 the ~~Agent~~applicable Manager. (d) Under no circumstances shall the number and aggregate ~~value~~ amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) the ~~Maximum Amount~~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 ~~Agent~~ Managers in writing. (e) ~~Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that~~ If any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either the Company or the Agent 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. (gf) Notwithstanding any other provision of this ~~Agreement,~~ 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~~Shares that would be sold, and ~~the Agent~~ no Manager shall ~~not~~ be obligated to ~~offer or sell any Shares~~sell, ~~(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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Soundhound Ai, Inc.)

Sale and Delivery of Shares. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, and 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~~ through or to ~~time through~~ the ~~Agent~~Manager, ~~acting~~ as sales ~~agent~~agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the ~~Agent~~ 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. (i) The Shares are to be sold by the Manager on a daily basis or otherwise as shall be mutually agreed to upon by the Company and the ~~Agent~~ Manager on any ~~day that (A) is a~~ trading day for ~~the NYSE~~ Nasdaq (other than a day on which ~~the NYSE~~ Nasdaq is scheduled to close prior to its regular weekday closing time) (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, as such Schedule B may be amended from time to time (the “Authorized Company Representatives”), has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic ~~mail~~mail 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 and (CB) the Company has satisfied its obligations under ~~Section~~ Sections 4, 5 and 6 ~~of this Agreement~~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 substantially in the form attached hereto as Exhibit 3(a)(i) the maximum amount of the Shares to be sold by the ~~Agent~~ Manager daily or over a specific trading period as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the ~~currently effective~~ Registration Statement ~~less~~ (iiincluding any limit set forth in General Instruction I.B.6 thereof, if applicable) ~~any amounts already~~ or in an 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 ~~pursuant to~~ under this Agreement ~~and~~ or below any minimum price below which sales of the ~~Alternative Equity Distribution Agreements~~Shares may not be effected) and any other limitations specified by the ~~minimum price per Share at~~ 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 ~~such Shares may be sold~~the Manger is acting for the Company in a capacity other than as Manager under this Agreement. Subject to the terms and conditions ~~hereof~~of this Section 3(a), the ~~Agent~~ Manager may sell the 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, to or through a market maker at market prices prevailing at the time of sale, at prices related to prevailing market prices or 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 ~~on a particular day, consistent with its normal trading practices,~~ all of the Shares ~~designated for~~ designated; provided, however, that the ~~sale by~~ Manager shall have no obligation to offer or sell any Shares, and 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) at the time of 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 the Manager shall have no such obligation, in the event that an offer or sale of the Shares on behalf of the Company may, 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 means of ordinary brokers’ transactions between members of Nasdaq that qualify for delivery of a Prospectus to Nasdaq in accordance with Rule 153 under the Act. (Aii) ~~there can~~ 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 ~~no assurance that~~ effected at or above the ~~Agent will be successful~~ price designated by the Company in ~~selling the Shares~~any such instruction. In addition, ~~(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 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 Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for ~~any reason and at any time~~a specified period (a “Suspension Period”); provided, however, that such ~~suspension or termination~~ 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~~notice and provided, further, that there shall be no obligations under Sections 4(m), 4(n), 4(p) and 4(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. ~~iv.~~ (iii) The ~~Agent~~ Manager 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 ~~ordinary brokers’ transactions between members of~~ At the 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 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 ~~Agent pursuant to a Terms Agreement~~Manager. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company, 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~~3.0% of the gross sales price of 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 for such Shares (the “Net Proceeds”). ~~vi. The Agent~~ (v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by ~~facsimile or~~ electronic mail) ~~to the Company promptly~~ as soon as is reasonably practicable following the close of trading on ~~the NYSE~~ Nasdaq each day in which the Shares are sold ~~under~~ pursuant to this Section 3(a) setting forth (i) the number of ~~the~~ Shares sold on such day, ~~the aggregate gross sales proceeds and~~ (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business Day~~ second business day that is also a trading day on Nasdaq following the date on which such sales are made (each such ~~day~~date, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the ~~Agent~~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 (“DTC”) 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~~ Company, or its transfer agent (if applicable) ), shall default on 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 ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If The Authorized Company Representatives shall be the ~~Agent breaches this Agreement by failing to deliver~~ contact persons for the ~~Net Proceeds~~ Company for all matters related to the ~~Company on any Settlement Date for~~ settlement of the transfer of the Shares ~~delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent~~through DTC for purposes of this Section 3(a)(vi). ~~viii.~~ (vii) At each ~~Applicable Time, Settlement~~ Representation Date~~, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a))~~, the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement 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~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 ~~of this Agreement~~hereof. (b) 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) hereof, it will notify the Manager of ~~this Agreement~~ the proposed terms of such issuance and sale (each, a “Placement”)~~, it will notify the Agent of the proposed terms of such Placement~~. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent~~ Company and the ~~Company~~ Manager will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 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 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 Manager 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 ~~Agent~~ Manager shall be made in accordance with the terms of this Agreement ~~and~~or, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Agent. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Agent. The ~~commitment of the Agent~~ Manager’s commitment, if any, to purchase Shares from the ~~Shares pursuant to any Terms Agreement~~ 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. ~~Each~~ At the time of each Terms ~~Agreement~~ Agreement, the Manager shall specify the ~~number of~~ requirements, if any, for the ~~Shares~~ officers’ certificates, legal opinions and comfort letters pursuant to ~~be purchased by the Agent pursuant thereto~~Sections 4(m), ~~the price to be paid to the Company for such Shares~~4(n), 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 (each such time and date being referred to herein as a “Time of Delivery”4(p) 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. (d4(q) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writinghereof. (e) ~~Except pursuant~~ Subject to ~~a reoffer of Shares~~ the limitations set forth herein and as ~~described in Section 3(c) hereof,~~ may be mutually agreed upon by the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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~~Manager, ~~however, that (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii)~~ sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made effected pursuant to this Agreement ~~or an Alternative Equity Distribution Agreement. (f) If either~~ may not be requested by 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, 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. (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 need not be ~~obligated to offer or sell any Shares,~~ made by the Manager (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~~ from and including the ~~period commencing on the seventh Business Day prior to the date (each, an “Announcement Date”)~~ day 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~~ applicable Bring-Down Delivery Date of the Company ~~files~~ referenced in Section 4(q) below, or (~~a “Filing Time”~~ii) ~~a Quarterly Report on Form 10-Q~~ during any other period in which the Company is, 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~~ could be deemed to be, ~~covered by such Earnings Announcement~~in possession of material non-public information. (hf) ~~If the~~ The Company ~~wishes to offer, sell or deliver Shares at any time during the period from~~ acknowledges and ~~including an Announcement Date through and including the time~~ agrees that ~~is 24 hours after the corresponding Filing Time, the Company shall~~ (i) ~~prepare and deliver to~~ there can be no assurance that the ~~Agent (with a copy to counsel to~~ Manager will be successful in selling 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)Shares, (ii) ~~provide~~ the ~~Agent~~ 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 ~~officers’ certificate~~terms of this Agreement, ~~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)~~ Manager 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 under any obligation to purchase Shares 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 a principal basis pursuant to this ~~Section 3(h) shall not relieve~~ Agreement except as otherwise specifically agreed by the Manager and the Company ~~from any of its obligations under this Agreement with respect~~ pursuant 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) of Section 3(g), which shall have independent applicationa Terms Agreement.

Appears in 1 contract

Samples: Equity Distribution Agreement (Edesa Biotech, Inc.)

Sale and Delivery of Shares. ~~(a) Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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~~ the Manager agree that the Company may from time to time seek to sell Shares through the ~~Agent~~Manager, acting as sales agent, ~~and the Agent agrees to use its reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. i. The Shares are to be sold on a daily basis~~ or otherwise as shall be agreed to by the Company and the Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Agent daily as previously agreed to in writing or electronic transmission by the Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) and the minimum price per Share at which such Shares may be sold. Subject directly 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 market price for shares of the Company’s Common Stock sold by the Agent under this Section 3(a) at the time of 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 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 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 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 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. iv. The Agent 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) (1) by 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 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 agreed by the Company and the Agent pursuant to a Terms Agreement. v. The compensation to the 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 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 Manager acting 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 for such Shares (the “Net Proceeds”). vi. The Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement.follows: (ba) If Each time that the Company wishes to issue and sell any Shares through 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~~ Manager hereunder (each, a “Placement”), it will notify the ~~Agent~~ Manager by email notice (or other method mutually agreed to in writing by the parties) (each such notice, a “Placement Notice”) containing the parameters in accordance with which it desires such Shares to be sold, which at a minimum shall include the maximum number or amount of Shares to be sold, the time period during which sales are requested to be made, any limitation on the number or amount of Shares that may be sold in any one Trading Day (as defined below) and any minimum price below which sales may not be made, a form of which containing such minimum sales parameters is attached hereto as Annex A. The Placement Notice must originate from one of the ~~proposed terms~~ individuals authorized to act on behalf of the Company and set forth on Annex C (with a copy to each of the other individuals from the Company listed on such Annex C), and shall be addressed to each of the recipients from the Manager set forth on Annex C, as such Annex C may be updated by either party from time to time by sending a written notice containing a revised Annex C to the other party in the manner provided in Section 10 (including by email correspondence to each of the individuals of the Company set forth on Annex C, if receipt of such ~~Placement~~correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply). If The Placement Notice shall be effective upon receipt by the ~~Agent~~Manager unless and until (i) in accordance with the notice requirements set forth in Section 3(b), ~~acting as principal, wishes~~ the Manager declines to accept ~~such proposed~~ the terms contained therein for any reason, in its sole discretion, within two Trading Days of the date the Manager receives the Placement Notice, (~~which it may decline to do~~ ii) in accordance with the notice requirements set forth in Section 3(b), the Manager suspends sales under the Placement Notice for any reason in its sole discretion, (iii) orthe entire amount of the Shares has been sold pursuant to this Agreement, ~~following discussions~~ (iv) in accordance with the ~~Company wishes to accept amended terms~~notice requirements set forth in Section 3(b), the ~~Agent and~~ Company suspends sales under or terminates the Placement Notice for any reason in its sole discretion, (v) the Company ~~will enter into~~ issues a ~~Terms Agreement,~~ subsequent Placement Notice and explicitly indicates that its parameters supersede those contained in ~~substantially~~ the ~~form~~ earlier dated Placement Notice or (vi) this Agreement has been terminated pursuant to the provisions of ~~Annex I hereto, setting forth the terms of such Placement~~Section 8. The amount of any discount, commission or other compensation to be paid by the Company to the Manager in connection with the sale of the Shares effected through the Manager shall be calculated in accordance with the terms set forth in ~~a Terms Agreement will not be binding on~~ Section 3(e). It is expressly acknowledged and agreed that neither the Company nor the Manager will have any obligation whatsoever with respect to a Placement or ~~the Agent~~ any Shares unless and until the Company delivers a Placement Notice to the Manager and the ~~Agent have each executed~~ Manager does not decline such ~~Terms Agreement accepting all of~~ Placement Notice pursuant to the terms ~~of such Terms Agreement~~set forth above, and then only upon the terms specified therein and herein. In the event of a conflict between the terms of this Agreement and the terms of a ~~Terms Agreement~~Placement Notice, the terms of ~~such Terms Agreement~~ the Placement Notice will control. (c) Each sale of the Shares to the Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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 control 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 partymatters covered thereby. (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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Sales Agreement (Applied Therapeutics Inc.)

Sale and Delivery of Shares. (a) 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 the ~~Agent~~Manager, acting as sales agent, and the ~~Agent~~ Manager agrees to use ~~its~~ their 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 by the Manager on a daily basis or otherwise as shall be agreed to by the Company and the ~~Agent~~ 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 has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum daily amount of the Shares to be sold by the ~~Agent daily~~ Manager as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its ~~commercially~~ reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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 ~~Agent~~ Manager under this Section 3(a) on Nasdaq at the time of 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)~~Shares. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Manager will be successful in selling the Shares, (B) the ~~Agent~~ Manager will incur no liability or obligation to the Company or any other person or entity if it the Manager does not sell Shares for any reason other than a failure by the ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the ~~Agent~~ Manager shall not be under no any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Manager and the Company. (iii. ) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ 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 ~~Agent~~ Manager in writing. The Company or the ~~Agent~~ Manager may, upon notice to the other party 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. (iv. ) The ~~Agent~~ Manager 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 ordinary brokers’ transactions between members of ~~the NYSE~~ Nasdaq that qualify for delivery of a Prospectus to Nasdaq in accordance with Rule 153 ~~under~~ of the Securities 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 agreed by the Company and the ~~Agent~~ Manager pursuant to a Terms Agreement. v. (v) The compensation to the ~~Agent~~ Manager for sales of the Shares with respect to which the ~~Agent~~ Manager acts as sales agent under this Agreement shall be ~~at a mutually agreed rate, not~~ up to ~~exceed 2.0~~3.0% of the gross sales price of 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~~ Manager acts as principal, in which case the Company may sell Shares to the ~~Agent~~ 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 ~~on the Agent~~ by any governmental or self-regulatory organization in respect of such ~~sales~~sales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi. ) The ~~Agent~~ Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ 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 to the Company, and the compensation payable by the Company to the ~~Agent~~ Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the ~~Agent~~ Manager to the Company, with payment to be made by the Company promptly after its receipt thereof. (vii. ) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business Day~~ second business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If the ~~Agent~~ Manager breaches this Agreement by failing to deliver the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees to the Company on any Settlement Date for the Shares delivered by the Company, the ~~Agent~~ Manager will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the ~~Agent~~Manager. (viii. ) At each Applicable Time, Settlement ~~Date,~~ Date and Representation Date (as defined in Section 4(k~~)) and Filing Date (as defined in Section 4(a~~)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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~~ Manager of the proposed terms of such Placement. If the ~~Agent, acting as principal,~~ Manager 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~~ Manager and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Manager unless and until the Company and the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Manager. The commitment of the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~Manager. (d) Under no circumstances shall the number and aggregate ~~value~~ amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) the ~~Maximum Amount~~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 ~~Agent~~ Manager acting as sales agent in writing. (e) ~~Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that~~ If any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either the Company or the Agent 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~~ 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. (gf) Notwithstanding any other provision of this ~~Agreement,~~ 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~~Shares that would be sold, and the ~~Agent~~ Manager shall not be obligated to ~~offer or sell any Shares~~sell, ~~(i)~~ 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 ~~could~~ would reasonably be deemed to be, in possession of material non-public information; provided that, or unless otherwise agreed between the Company and the Manager, for purposes of this paragraph (iif) ~~except as provided in Section 3(h) below, at any time during the~~ such period ~~commencing~~ shall be deemed to end 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 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 Company’s next subsequent Annual Report on Form 10-K ~~that includes consolidated financial statements as of and for the same period~~ or ~~periods~~Quarterly Report on Form 10-Q, 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 filed 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (PhaseBio Pharmaceuticals Inc)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares~~ through an Agent acting as sales agent or directly to an Agent acting as principal from time to time ~~through~~ (the “Designated Agent~~, acting as sales agent~~”), and the 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 terms~~time 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. ~~i. The~~ (b) 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 agreed to by the Company and the 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 has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C)~~ that the Company has satisfied its obligations under Section 6 of this Agreement and that the Company has instructed the Designated Agent to make such sales. 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 such securities for the accounts of such persons in which the Designated Agent is acting for the Company in a capacity other than as Agent under this Agreement. ~~The~~ On any Trading Day, the Company may instruct the Designated Agent by telephone (confirmed promptly by telecopy or email, which confirmation will ~~designate~~ be promptly acknowledged by the Designated Agent) as to the maximum ~~amount~~ dollar value of ~~the~~ Shares or number of Shares to be sold by the Designated Agent ~~daily as previously agreed to in writing or electronic transmission by the Agent~~ on such day (in any event not in excess of ~~(i)~~ the ~~amount~~ number available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be ~~sold~~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 ~~on a particular day, consistent with its normal trading practices,~~ as sales agent 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) at the time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share so designated by the Company ~~at which such Shares may be sold). ii~~and in the manner and on the terms so designated by the Company. The Company ~~acknowledges~~ and ~~agrees~~ 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~~ 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 ~~under~~ by this Agreement, and (C) the Designated Agent shall be under no obligation to purchase Shares on a principal basis ~~pursuant to this Agreement,~~ except as otherwise specifically agreed by each of the Designated Agent and the ~~Company~~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. ~~iii. The~~ (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 reasonable efforts to~~ sell, any ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ authorized from time to time, or (ii) in a number in excess of the number or maximum aggregated dollar value of Shares authorized from time to time to be issued and sold under this Agreement, in each case, by the Company’s ~~Board~~ board of ~~Directors (the “Board”)~~directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing. ~~The~~ In addition, the Company may, upon notice to the Designated Agent, suspend the offering of the Shares or the Designated Agent may, upon notice to the ~~other party hereto by telephone (confirmed promptly by electronic mail)~~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 may be given by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged). ~~iv.~~ (d) The gross sales price per share of any Shares sold pursuant to this Agreement by the Designated Agent ~~hereby covenants and agrees not to make any~~ acting as sales agent of the Company shall be the prevailing market price at the time of the sales of the Shares on behalf of the Company pursuant to this Section 3(a), other than (A) (1) by 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 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 agreed sold by the ~~Company and the~~ Designated Agent ~~pursuant~~ on Nasdaq or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the Designated Agent for sales of ~~the~~ Shares with respect to which the Designated Agent acts as sales agent ~~under this Agreement~~ shall be ~~at a mutually agreed rate, not~~ up to ~~exceed~~ 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. 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~~ Designated Agent, acting as ~~principal~~ 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 ~~on the Agent~~ 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 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. ~~vi. The~~ (e) If acting as a sales agent hereunder, the Designated Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ Nasdaq, each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to ~~the~~ such Designated Agent with respect to such sales~~. Such compensation~~ . (f) Under no circumstances shall be 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 ~~invoiced in periodic statements~~ 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 ~~Agent~~ Company’s board of directors, or a duly authorized committee thereof, and notified to the ~~Company~~Designated Agent in writing. In addition, under no circumstances shall any Shares with ~~payment~~ respect to which the Designated Agent acts as sales agent be ~~made~~ sold at a price lower than the minimum price therefor authorized from time to time by the ~~Company promptly after its receipt~~ Company’s board of directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing. ~~vii.~~ (g) Settlement for sales of ~~the~~ Shares pursuant to this Section ~~3(a)~~ 2 will occur on the ~~third Business~~ second business day that is also a 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 day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Designated Agent for settlement on such date shall be ~~issued and~~ delivered by the Company to the Designated Agent against payment of the Net Proceeds ~~for~~ from the sale of such Shares. Settlement for all ~~such~~ Shares shall be effected by ~~free~~ book-entry delivery of ~~the~~ Shares to the Designated Agent’s account at The Depository Trust Company ~~(“DTC”) in return for~~ against payments by the Designated Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to ~~the~~ an account designated by the Company. If the Company ~~or its transfer agent (if applicable)~~ shall default on its obligation to deliver ~~the~~ Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Designated Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Designated Agent any commission to which it would otherwise be entitled absent such default~~. If the Agent breaches~~ . (h) Notwithstanding any other provision of this ~~Agreement by failing to deliver the Net Proceeds to~~ Agreement, the Company on and the Agents agree that no sales of Shares shall take place, and the Company shall not request the sale of any ~~Settlement Date for~~ Shares that would be sold, and the ~~Shares delivered by~~ Agents shall not be obligated to sell, during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the ~~Agent will pay~~ 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 ~~interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due~~ is, or could be deemed to ~~the Agent~~be, in possession of material non-public information. ~~viii.~~ (i) At each Applicable Time, Settlement Date, ~~Representation~~ Registration Amendment Date ~~(as defined in Section 4(k))~~ and ~~Filing Date (as defined in Section 4(a))~~each Company Periodic Report Date, the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement 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~~Agreement. Any obligation of the ~~Agent~~ 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 herein, to the performance by the Company of 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 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: At the Market Equity Offering Sales Agreement (Gladstone Commercial Corp)

Sale and Delivery of Shares. (a) 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 the ~~Agent~~Manager, acting as sales agent, and the ~~Agent~~ Manager agrees to use its reasonable efforts to sell, as sales agent for the Company, up to the Maximum Amount of Shares on the following terms. i. (i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the ~~NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)~~NYSE, (B) the Company has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of 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 the maximum amount of the Shares to be sold by the ~~Agent~~ Manager (daily or otherwise) as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution AgreementsMaximum Amount of Shares) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its ~~commercially~~ reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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~~ Shares sold by the ~~Agent~~ Manager under this Section 3(a) on the NYSE at the time of 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)~~Shares. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Manager will be successful in selling the Shares, (B) the ~~Agent~~ Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the ~~Agent~~ Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Manager and the Company. (iii. ) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ 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 ~~Agent~~ Manager in writing. The Company or the ~~Agent~~ Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for 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 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. (iv. ) The ~~Agent~~ Manager 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 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 as “Continuous Offerings”)transactions, (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 or as principal as shall be agreed by the Company and the ~~Agent pursuant to a Terms Agreement~~Manager in writing. v. (v) The compensation to the ~~Agent~~ Manager for sales of the Shares with respect to which the ~~Agent~~ Manager acts as sales agent under this Agreement shall be ~~at a mutually agreed rate, not to exceed 2.0~~2.00% of the gross sales price of 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~~ Manager acts as principal, in which case the Company may sell Shares to the ~~Agent~~ 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 on the Agent by any governmental or self-regulatory organization in respect of such sales,~~ proceeds shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi. ) The ~~Agent~~ Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Chief Financial Officer of the Company ~~promptly~~ (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 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 to the Company~~Proceeds, and the compensation payable by the Company to the ~~Agent~~ Manager 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~~. (vii. ) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to an account in favor of the ~~account designated by the Company~~Company maintained at Key Bank National Association. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. (viii. ) At each Applicable Time, Settlement ~~Date,~~ Date and Representation Date (as defined in Section 4(k)) ~~and Filing Date (as defined in Section 4(a)~~of this Agreement), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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 ~~Agent~~ Manager and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Manager unless and until the Company and the ~~Agent~~ 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. 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 ~~Agent~~ 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 ~~Agent~~Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Manager. The commitment of the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~Manager. (d) Under no circumstances shall the ~~aggregate value~~ gross sales price of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) the ~~Maximum Amount~~aggregate gross sales price set forth in Section 1 of this Agreement, (ii) the number ~~of shares of~~ or the ~~Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and~~ aggregate ~~amount~~ 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 ~~Agent~~ Manager in writing~~. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares~~, or any sales of Shares shall only be effected by or through only one 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 (aiii) the ~~foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii)~~ aggregate gross sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, it shall promptly notify the other party and sales price of the Shares ~~under~~ authorized by the PSB. Under no circumstances shall the number of Shares sold pursuant to this Agreement and any Terms Agreement ~~shall be suspended until that or other exemptive provisions have been satisfied in~~ exceed the ~~judgment~~ Maximum Amount of ~~each party~~Shares. (ge) Notwithstanding any other provision of this Agreement, the Company agrees that no sales of Shares shall take place, and 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~~ Manager shall not be obligated to ~~offer or sell any Shares~~sell, ~~(i)~~ during any period in which the Company is, or could be deemed to be, in possession of material non-public information; provided that, ~~or (ii) except as provided in~~ notwithstanding the provisions of this 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 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 Time3(e), the Company agrees that no sales of Shares shall take place during the twenty (i20) ~~prepare and deliver~~ calendar days prior to ~~the Agent~~ an Earnings Release (~~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”~~defined below), 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Central Vermont Public Service Corp)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales ~~agent,~~ agent and the 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. i. 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 (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 agreed to by the Company and the 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~~ 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 ~~which the NYSE is scheduled to close~~ 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 ~~regular weekday closing time~~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”), ~~(B) the Company has instructed~~ it will notify the Agent by ~~telephone~~ email notice (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~electronic mail~~the parties) containing the parameters in accordance with which it desires Shares to ~~make~~ 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 (Cwhich 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 ~~Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum~~ entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on NASDAQ or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ equal to ~~exceed 2.0~~2% of the gross sales price of the Shares for amounts of 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~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ NASDAQ each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNASDAQ. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then 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, the RBC Agreement and the BB&T Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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 4 and made in accordance with the terms of the applicable Acceptance will occur on the third business day that is also a trading day for NASDAQ (other than a day on which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made, unless another date shall be agreed to by the Company and the Agent (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any Settlement Date, the Company shall (i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) ~~Notwithstanding any other provision~~ At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the 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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 Company pursuant to this Agreement shall only be effected by or through only one of Agent, RBC or BB&T on any single given day, but in no event by more than one of them, and the Company shall in no event request that more than one of Agent, RBC or BB&T sell shares of Common Stock on the same day; provided, however, that (i) the foregoing limitation shall not apply to sales solely to employees of the Company, the Adviser, the Administrator or their respective affiliates, or to a trustee or other person acquiring such securities for the accounts of such persons and (ii) 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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer or sell any Shares~~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 (ii) with respect to the Company’s annual report filings on Form 10-K, during any period commencing upon the 50th day following the end of the Company’s fiscal year 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 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, 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 the 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, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Prospect Capital Corp)

Sale and Delivery of Shares. (a) 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 the ~~Agent~~Manager, acting as sales agent, and the ~~Agent~~ Manager agrees to use its 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 agreed to by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the ~~NYSE~~ New York Stock Exchange (~~other than a day on which~~ the ~~NYSE is scheduled to close prior to its regular weekday closing time~~“NYSE”) and the Nasdaq Global Market (“Nasdaq”), (B) the Company has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the ~~Agent~~ Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its ~~commercially~~ reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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~~ Shares sold by the ~~Agent~~ Manager under this Section 3(a) on the NYSE and Nasdaq at the time of 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)~~Shares. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Manager will be successful in selling the Shares, (B) the ~~Agent~~ Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the ~~Agent~~ Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Manager and the Company. (iii. ) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ 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 ~~Agent~~ Manager in writing. The Company or the ~~Agent~~ Manager may, upon notice to the other party 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. (iv. ) The ~~Agent~~ Manager 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 ordinary brokers’ transactions between members of the NYSE and Nasdaq that qualify for delivery of a Prospectus to the NYSE and Nasdaq 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 agreed by the Company and the ~~Agent~~ Manager pursuant to a Terms Agreement. v. (v) The compensation to the ~~Agent~~ Manager for sales of the Shares with respect to which the ~~Agent~~ 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 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~~ Manager acts as principal, in which case the Company may sell Shares to the ~~Agent~~ 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 ~~on the Agent~~ by any governmental or self-regulatory organization in respect of such ~~sales~~sales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi. ) The ~~Agent~~ Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company ~~promptly~~ following the close of trading on the NYSE and 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 to the Company, and the compensation payable by the Company to the ~~Agent~~ Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the ~~Agent~~ Manager to the Company, with payment to be made by the Company promptly after its receipt thereof. (vii. ) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If the ~~Agent~~ Manager breaches this Agreement by failing to deliver the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees to the Company on any Settlement Date for the Shares delivered by the Company, the ~~Agent~~ Manager will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the ~~Agent~~Manager. (viii. ) At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section ~~4(a~~4(x)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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 ~~Agent~~ Manager and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Manager unless and until the Company and the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Manager. The commitment of the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~Manager. (d) Under no circumstances shall the number and aggregate ~~value~~ amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) the ~~Maximum Amount~~aggregate amount set forth in Section 1, (ii) the number of ~~shares of the~~ Common ~~Stock~~ 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 ~~Agent~~ Manager in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either ~~the Company or the Agent~~ 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. (gf) 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~~Shares that would be sold, and the ~~Agent~~ Manager shall not be obligated to ~~offer or sell any Shares~~sell, ~~(i)~~ 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, or unless otherwise agreed between the Company and the Manager, for purposes of this paragraph (iif) ~~except as provided in Section 3(h) below, at any time during the~~ such period ~~commencing~~ shall be deemed to end 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 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 Company’s next subsequent Annual Report on Form 10-K ~~that includes consolidated financial statements as of and for the same period~~ or ~~periods~~Quarterly Report on Form 10-Q, 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 filed 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Associated Estates Realty Corp)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales agent, and the Agent agrees to use its commercially reasonable efforts to ~~sell,~~ sell as sales agent 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 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 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 ~~following terms. i. The~~ number of Shares ~~are to~~ 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 ~~daily basis or otherwise as~~ 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 ~~any day~~ 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 (Aor other method mutually agreed to in writing by the parties) ~~is a trading day for~~ of all of the ~~NYSE~~ terms of such Placement Notice, as proposed to be modified (~~other than a day on which~~ the ~~NYSE is scheduled to close prior to its regular weekday closing time~~“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. (BNew 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 Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 reasonable efforts~~ permitted to sell, any ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on Nasdaq or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ maximum of 2.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. ~~The foregoing rate~~ In lieu of ~~compensation shall not apply when the Agent acts as principal, in which case~~ the Company ~~may sell Shares~~ paying all compensation payable to the Agent ~~as principal at a price agreed upon at~~ for the ~~relevant Applicable Time~~ sale of the Shares pursuant to ~~a Terms~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ Nasdaq each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNasdaq. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then currently effective Registration ~~Statement~~ 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 Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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. (gf) ~~Notwithstanding~~ Settlement for sales of Shares pursuant to this Section 4 and made in accordance with the terms of the applicable Acceptance will occur on the second business day that is also a trading day for Nasdaq (other than a day on which Nasdaq is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are 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 day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any ~~other provision of~~ Settlement Date pursuant to this Agreement, the Company shall (i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator, as applicable, shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the 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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer~~ sell, during: 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 ~~sell~~ annual report on Form 10-K, as applicable, and ending on the 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) 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 shall take place for the period beginning on the date of the Earnings Release and ending on the date of the 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~~Shares that would be sold, ~~(i)~~ and the Agent shall not be obligated to sell, during any period in which the Company ~~is, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Gladstone Capital Corp)

Sale and Delivery of Shares. (a) 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 the ~~Agent~~several Managers, acting as sales ~~agent~~agents, and ~~the Agent~~ each Manager severally agrees to use its reasonable efforts to sell, as a 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 agreed to by the Company and the ~~Agent~~ 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 has instructed the ~~Agent~~ applicable Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 5 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the ~~Agent~~ applicable Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by ~~the Agent~~ such Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the ~~Agent~~ applicable Manager shall use its ~~commercially~~ reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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 ~~Agent~~ applicable Manager under this Section 3(a) on the NYSE at the time of sale of such ~~Shares (but in no event shall such gross sales price be less~~ Shares. Other than ~~the minimum price per Share designated by~~ pursuant to a Terms Agreement with respect to which both Managers are parties, the Company ~~at which such Shares may be sold)~~shall not instruct more than one Manager to offer or sell shares on any single day. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Managers will be successful in selling the Shares, (B) ~~the Agent~~ no Manager will incur no any liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by ~~the Agent~~ such Manager to use its ~~commercially~~ reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) ~~the Agent~~ no Manager shall be under no any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by ~~the Agent~~ such Manager and the Company. (iii. ) The Company shall not authorize the issuance and sale of, and ~~the Agent~~ no 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 ~~Agent~~ applicable Manager in writing. The Company or ~~the Agent~~ 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 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. Notwithstanding anything to the contrary, during 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), the Company shall not be 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), be deemed to affirm any of the representations or warranties contained in this Agreement pursuant to Sections 2 or 4 hereof, or be obligated to conduct any due diligence session as referred to in Section 4(p) until the termination of the suspension 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)). (iv~~. The Agent~~ ) Each Manager 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 ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 ~~under~~ of the 1933 Act Regulations (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 agreed by the Company and ~~the Agent~~ such Manager pursuant to a Terms Agreement. v. (v) The compensation to the ~~Agent~~ Managers for sales of the Shares with respect to which ~~the Agent~~ 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 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~~ a Manager acts as principal, in which case the Company may sell Shares to the ~~Agent~~ 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 ~~on the Agent~~ by any governmental or self-regulatory organization in respect of such ~~sales~~sales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi. ) The ~~Agent~~ applicable Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company ~~promptly~~ following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to ~~the Agent~~ such Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the ~~Agent~~ applicable Manager to the Company, with payment to be made by the Company promptly after its receipt thereof. (vii. ) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through ~~the Agent~~ a Manager for settlement on such date shall be issued and delivered by the Company to ~~the Agent~~ such Manager against payment of the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~applicable Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ applicable Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay ~~the Agent~~ such Manager any commission to which it would otherwise be entitled absent such default. If ~~the Agent~~ a Manager breaches this Agreement by failing to deliver the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees to the Company on any Settlement Date for the Shares delivered by the Company, ~~the Agent~~ such Manager will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to ~~the Agent~~such Manager. (viii. ) At each Applicable Time, Settlement ~~Date,~~ Date and Representation Date (as defined in Section ~~4(k)) and Filing Date (as defined in Section 4(a~~4(l)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ 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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 5 of this Agreement. (b) 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~~ applicable Manager of the proposed terms of such Placement. If the ~~Agent~~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, ~~the Agent~~ such Manager and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ applicable Manager unless and until the Company and ~~the Agent~~ 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 ~~the Agent~~ 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 ~~Agent~~applicable Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by ~~the Agent~~a Manager. The commitment of ~~the Agent~~ 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 ~~Agent~~ 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 ~~Agent~~ 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 also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 5 of this Agreement and any other information or documents required by the ~~Agent~~applicable Manager. (d) Under no circumstances shall the number and aggregate ~~value~~ amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) the ~~Maximum Amount~~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 ~~Agent~~ Managers in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of If the Company or ~~its subsidiaries, or to~~ a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either the Company or the Agent 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 ~~party~~ 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. (gf) Notwithstanding any other provision of this ~~Agreement,~~ 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~~Shares that would be sold, and the ~~Agent~~ Managers shall not be obligated to ~~offer or sell any Shares~~sell, ~~(i)~~ 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, or unless otherwise agreed between the Company and the Managers, for purposes of this paragraph (iif) ~~except as provided in Section 3(h) below, at any time during the~~ such period ~~commencing~~ shall be deemed to end 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 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 Company’s next subsequent Annual Report on Form 1020-F or Report on Form 6-K that ~~includes consolidated~~ contains financial statements ~~as of and~~ for ~~the same period or periods~~a completed fiscal period, 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 filed 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Seaspan CORP)

Sale and Delivery of Shares. ~~(a) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the~~ The Company ~~agrees~~ proposes to issue and sell ~~Shares~~ through or to the Manager, as sales agent and/or principal, from time to time ~~through~~ during the Agent, acting as sales agent, and the Agent agrees to use its reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. i. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 term of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Agent daily as previously agreed to in writing or electronic transmission by the Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this Agreement and ~~the Alternative Equity Distribution Agreements) and the minimum price per Share at which such Shares may be sold. Subject to~~ on the terms ~~and conditions hereof~~set forth herein, shares (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“Shares”) ~~shall be the market price for shares~~ of the Company’s common stock, $0.0001 par value per share (“Common Stock sold by the Agent under this Section 3(a) at the time of 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 soldStock”)~~. ii. The Company 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 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 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 during the ~~Company’s Board~~ term of ~~Directors (~~this Agreement and on 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 any reason and at any timeterms set forth herein; provided, however, that in no event shall the Company issue or sell through the Manager such ~~suspension~~ number of Shares that (a) exceeds the number or ~~termination shall not affect or impair~~ dollar amount of shares of Common Stock registered on the ~~parties’ respective obligations with respect~~ Registration Statement, pursuant to which the ~~Shares sold hereunder~~ offering is being made, less the dollar amount of securities issued under the Registration Statement prior to the ~~giving~~ date of ~~such notice. iv. The Agent 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) (1) by 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 as “Continuous Offerings”)Agreement, (2b) 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 agreed by the Company and the Agent pursuant to a Terms Agreement. v. The compensation to the 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 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 for such Shares (the “Net Proceeds”). vi. The Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE each day in which the Shares are sold under this Section 3(a) setting forth exceeds the number of the Shares sold on such day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company to the 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. vii. Settlement for sales authorized but unissued shares of ~~the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made~~ Common Stock (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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~~ issuable upon exercise, conversion or exchange of any outstanding securities of the ~~currently effective Registration Statement~~ Company or otherwise reserved from the Company’s authorized capital stock), or (~~iii~~c) would cause the ~~number and aggregate amount~~ Company or the offering of the Shares ~~authorized from time~~ to ~~time to be issued~~ not satisfy the eligibility and ~~sold under~~ 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 ~~by the Board, or a duly authorized committee thereof, and notified to the Agent in writing. (e) Except~~ is terminated pursuant to ~~a reoffer~~ Sections 8(a) or (b) above or otherwise by mutual agreement of ~~Shares as described in Section 3(c) hereof~~the parties, ~~the Company agrees~~ provided that any ~~offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected~~ such termination 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~~ mutual agreement shall in ~~no event request~~ 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 ~~Agent and any~~ date of this Amendment shall be a Representation Date under the ~~Alternative Agents sell Shares on the same day;~~ ATM Agreement (provided, however, that (athe deliverables under Section 4(m) of the ~~foregoing limitation~~ ATM Agreement shall not ~~apply~~ 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 ~~(i)~~ the ~~exercise of any option, warrant, right or any conversion privilege~~ 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 paid on the date hereof, such amount to be inclusive of the expenses incurred in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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 due diligence session with respect to the ~~Shares~~Representation Date hereof. 6. Except as expressly set forth herein, ~~it shall promptly notify the other party and sales~~ all of the ~~Shares under this Agreement~~ terms and ~~any Terms~~ conditions of the ATM Agreement shall ~~be suspended until that or other exemptive provisions have been satisfied~~ continue in full force and effect after the ~~judgment of each party. (g) Notwithstanding any other provision~~ execution 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, Amendment and ~~the Agent~~ shall not be ~~obligated to offer~~ in any way changed, modified or ~~sell any Shares~~superseded by the terms set forth herein. 7. This Amendment may be executed in two or more counterparts and by facsimile or “.pdf” signature or otherwise, ~~(i) during any period in which the Company is, or could~~ and each of such counterparts shall be deemed ~~to be, in possession~~ an original and all 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 such counterparts together shall ~~issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through~~ constitute one 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 beagreement. 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: At the Market Offering Agreement (Sonoma Pharmaceuticals, Inc.)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales ~~agent,~~ agent and the 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. i. 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 (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 agreed to by the Company and the 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~~ 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 ~~which the NYSE is scheduled to close~~ 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 ~~regular weekday closing time~~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”), ~~(B) the Company has instructed~~ it will notify the Agent by ~~telephone~~ email notice (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~electronic mail~~the parties) containing the parameters in accordance with which it desires Shares to ~~make~~ 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 (Cwhich 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 ~~Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum~~ entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on NASDAQ or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ equal to ~~exceed 2.0~~2% of the gross sales price of the Shares for amounts of 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~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ NASDAQ each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNASDAQ. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then 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 KCM Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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 4 and made in accordance with the terms of the applicable Acceptance will occur on the third business day that is also a trading day for NASDAQ (other than a day on which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made, unless another date shall be agreed to by the Company and the Agent (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any Settlement Date, the Company shall (i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) ~~Notwithstanding any other provision~~ At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the 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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 Company 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 Company shall in no event request that Agent and KCM sell shares of Common Stock on the same day; provided, however, that (i) the foregoing limitation shall not apply to sales solely to employees of the Company, the Adviser, the Administrator or their respective affiliates, or to a trustee or other person acquiring such securities for the accounts of such persons and (ii) 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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer~~ sell, 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 or ~~sell~~ 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~~Shares that would be sold, ~~(i)~~ and the Agent shall not be obligated to sell, during any period in which the Company ~~is, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Prospect Capital Corp)

Sale and Delivery of Shares. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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 the ~~Agent~~Manager, ~~acting~~ as sales agent, as and when it provides instructions, in its discretion, for the sale of Shares, and the ~~Agent~~ Manager 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 to upon by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 ~~of this Agreement~~hereof. The Company will designate the maximum amount of the Shares to be sold by the ~~Agent~~ Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the ~~Prospectus and the~~ currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) 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 on a particular day, consistent with its normal trading practices, all or in an amount in excess of the amount of 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) at the time of 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 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 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 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 authorized from time to time to be issued and sold under this Agreement by the Company’s Board of ~~Directors (the “Board”)~~Directors, or a duly authorized committee thereof, and notified to the ~~Agent~~ Manager by electronic mail substantially in ~~writing~~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. ~~The~~ 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 time of sale, at prices related to prevailing market prices or at negotiated prices. Subject to the terms and conditions of this Section 3(a), 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 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 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 means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At the Market Offerings”). (ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the 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 Agent~~ Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for ~~any reason and at any time~~a specified period (a “Suspension Period”); provided, however, that such ~~suspension or termination~~ 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~~notice and provided, further, that there shall be no obligations under Sections 4(n), 4(o), 4(p) and 4(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. ~~iv.~~ (iii) The ~~Agent~~ Manager 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 ~~ordinary brokers’ transactions between members of~~ At the 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 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 ~~Agent pursuant to a Terms Agreement~~Manager. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company, 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 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 for such Shares (the “Net Proceeds”). ~~vi.~~ (v) The ~~Agent~~ Manager shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ as soon as is reasonably practicable following the close of trading on the NYSE each day in which the Shares are sold ~~under~~ pursuant to this Section 3(a) setting forth the ~~number~~ amount of the Shares sold on such day, ~~the aggregate gross sales proceeds and~~ the Net Proceeds to the Company, and the compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ business day following the date on which such sales are made (each such ~~day~~date, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the ~~Agent~~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 (“~~DTC~~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~~ Company, or its transfer agent (if applicable) ), shall default on upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If The Authorized Company Representatives shall be the ~~Agent breaches this Agreement by failing to deliver~~ contact persons for the ~~Net Proceeds~~ Company for all matters related to the ~~Company on any~~ 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 for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (as defined in Section ~~4(k)~~4(n) ~~and Filing Date (as defined in Section 4(a))~~hereof, the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement 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~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 ~~of this Agreement~~hereof. (bi) 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~~ hereof (each, a “Placement”), it will notify the ~~Agent~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent~~ Company and the ~~Company~~ Manager will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 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 any Terms Agreement, the terms of such Terms Agreement will control. (c) Each sale of the Shares to the Agent 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 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 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 (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 Agent. (di) Under no circumstances shall the aggregate ~~value~~ gross sales proceeds of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the lesser of (iA) the ~~Maximum Amount,~~ amount set forth in Section 1 hereof and (iiB) the ~~number of shares of the Common Stock~~ amount available for ~~issuance~~ offer and sale under the currently effective Registration Statement ~~or (iii)~~ nor shall the ~~number and~~ aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized ~~from time to time~~ to be issued and sold from time to time under this Agreement by the ~~Board~~Company’s Board of Directors, or a duly authorized committee thereof, and notified to the ~~Agent~~ Manager in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other ~~party~~ party, and sales of the Shares under this ~~Agreement and any Terms~~ Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. (gd) ~~Notwithstanding any other provision~~ 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 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~~ Manager, sales effected pursuant to this Agreement may not be ~~obligated to offer or sell any Shares, (i) during any period in which~~ requested by the Company ~~is, or could~~ and need not be ~~deemed to be, in possession of material non-public information, or (ii)~~ made by the Manager 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 operations (each, an “Earnings Announcement”) through and including the time that ~~is 24 hours~~ begins after the ~~time that the Company files (a “Filing Time”)~~ filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K ~~that includes consolidated financial statements~~ as of and within the period required by the Exchange Act (each such date, a “Filing Date”) and ends, for ~~the same period or~~ 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 ~~case may~~ end of the quarter in which the applicable Filing Date occurs. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Manager, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is or could be deemed to be, ~~covered by such Earnings Announcement~~in possession of material non-public information. (hf) ~~If the~~ The Company ~~wishes to offer, sell or deliver Shares at any time during the period from~~ acknowledges and ~~including an Announcement Date through and including the time~~ agrees that ~~is 24 hours after the corresponding Filing Time, the Company shall~~ (i) ~~prepare and deliver~~ 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 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 (Company or any other person or entity if it does not sell Shares for any reason other than ~~any earnings projections~~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, ~~similar forward-looking data~~ and ~~officers’ quotations~~(iii) ~~(each, an “Earnings 8-K”)~~the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement unless a Terms Agreement, in form and substance ~~reasonably~~ mutually satisfactory to the ~~Agent~~Company and Manager, 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 executed by the Company ~~from~~ and the Manager. (g) The Company agrees that any offer to sell, any solicitation of ~~its obligations under this Agreement with respect~~ an offer to buy, or any ~~Quarterly Report~~ sales of Shares shall only be effected by or through only the Manager on ~~Form 10-Q or Annual Report on Form 10-K~~any single given day, as and 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) Company shall in no ~~way affect or limit~~ event request that the ~~operation of~~ Manager sell Shares on the ~~provisions of clauses (i) and (ii) of Section 3(g), which shall have independent application~~same day.

Appears in 1 contract

Samples: Equity Distribution Agreement (Education Realty Trust, Inc.)

Sale and Delivery of Shares. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions ~~and in reliance upon the representations and warranties~~ herein set forth, (I) the Company agrees to issue and sell ~~Shares from time~~ through or to ~~time through the Agent~~one or more Managers, ~~acting~~ each as sales ~~agent~~agent and/or principal, as and when it provides instructions, in its discretion, to any Manager or Managers for the offer and sale of Shares, and the ~~Agent~~ 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 terms~~terms and subject to the conditions set forth in the relevant Forward Placement Notice, this Agreement and the applicable Confirmation. i. (i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed to upon by the ~~Company and~~ Company, the ~~Agent~~ 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 ~~Agent~~ applicable Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares on terms acceptable to such ~~sales~~ Manager and (CIII) the Company has satisfied its obligations under Section 6 hereof. 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 applicable Manager, substantially in the form attached hereto as Schedule 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 ~~this Agreement. The Company will designate~~ 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 ~~amount~~ aggregate gross sales price or the maximum number of ~~the~~ Forward Hedge Shares to be sold by the ~~Agent~~ 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 ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent (in any event~~ applicable Manager and, if applicable, the relevant Forward Purchaser; provided that such amount shall not be in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the ~~currently effective~~ Registration Statement ~~less~~ or in an amount in excess of the Maximum Amount; and provided, further, that, in the case of a Forward Placement Notice, (iix) the sum of (1) the number of Confirmation Shares issued under all Confirmations that have settled as of the contemplated date of delivery, (2) the aggregate Capped Number (as defined in each applicable Confirmation) under all Confirmations outstanding as of 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 also specify any ~~amounts already issued and sold pursuant~~ other limitations mutually agreed to ~~this Agreement and~~ by the ~~Alternative Equity Distribution Agreements) and~~ applicable Manager and, if applicable, the ~~minimum price per Share at which such Shares may be sold~~relevant Forward Purchaser. 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 market price for shares of the Company’s Common Stock sold by the Agent under this Section 3(a) at the time of 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 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 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 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 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. iv. The Agent 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) (1)~~ the applicable Manager may sell Shares by ~~means of ordinary brokers’ transactions between members of~~ any method permitted by law deemed to be an “at the ~~NYSE that qualify for delivery of a Prospectus~~ market” offering as defined in ~~accordance with~~ Rule ~~153~~ 415 under the Act (~~such transactions are hereinafter referred to as~~ an “~~Continuous Offerings~~At the Market Offering”), ~~(2)~~ 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 ~~(3)~~ directly on to any customer or ~~through~~ client of the applicable Manager. The applicable Manager may also sell Shares by any other ~~national securities exchange or facility thereof~~method permitted by law, ~~a trading facility of a national securities association~~including but not limited to in privately negotiated transactions, ~~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 agreed by the Company and the Agent pursuant to a Terms Agreement. v. The compensation to the 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 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 for such Shares (the “Net Proceeds”). vi. The Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, ~~the Agent will pay the Company interest based on the effective overnight federal funds rate on~~ such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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 Agent shall be made in accordance with the terms of this Agreement 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 ~~Terms Agreement~~trading day, the next trading day following such date and ending on the last such trading day or such earlier date on which ~~will provide for~~ the applicable Manager, as forward seller, shall have completed the sale of ~~such~~ Forward Hedge Shares to, and the purchase thereof by, the 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 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 in connection with the Agent 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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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 dayrelevant Confirmation; provided, however, that ~~(a)~~ if, prior to the ~~foregoing limitation shall not apply to (i) the exercise~~ scheduled end of any ~~option~~Forward Hedge Selling Period (x) any event occurs that would permit the Forward Purchaser to designate a Scheduled Trading Day as an Early Valuation Date (each as defined in each applicable Confirmation) under, ~~warrant~~and pursuant to, ~~right or any conversion privilege set forth in~~ the ~~instrument governing such security~~ provisions of Section 2 of the applicable Confirmation or (iiy) ~~sales solely to employees or security holders~~ 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 ~~Company or its subsidiaries~~first such occurrence; and provided, ~~or to a trustee or other person acquiring such securities for~~ further, that any Forward Hedge Selling Period then in effect shall immediately terminate upon the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (g) Notwithstanding any other provision termination 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~~ . The applicable Manager may accept such Placement Notice by telephone or in writing (~~confirmed promptly by telecopy or email~~including electronic mail), 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (QualityTech, LP)

Sale and Delivery of Shares. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions ~~and in reliance upon the representations and warranties~~ herein set forth, (I) the Company agrees to issue and sell ~~Shares from time~~ through or to ~~time through the Agent~~one or more Managers, ~~acting~~ each as sales ~~agent~~agent and/or principal, as and when it provides instructions, in its discretion, to any Manager or Managers for the sale of Shares, and the ~~Agent~~ 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 terms~~terms and subject to the conditions set forth in the relevant Forward Placement Notice, this Agreement and the applicable Confirmation. i. (i) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed to upon by the ~~Company and~~ Company, the ~~Agent~~ 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 ~~Agent~~ applicable Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares on terms acceptable to such ~~sales~~ Manager and (CIII) the Company has satisfied its obligations under Section 6 hereof. 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 applicable Manager, substantially in the form attached hereto as Schedule 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 ~~this Agreement. The Company will designate~~ 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 ~~amount~~ aggregate gross sales price or the maximum number of ~~the~~ Forward Hedge Shares to be sold by the ~~Agent~~ 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 ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent (in any event~~ applicable Manager and, if applicable, the relevant Forward Purchaser; provided that such amount shall not be in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the ~~currently effective~~ Registration Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) 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 on a particular day, consistent with its normal trading practices, all or in an amount in excess of the ~~Shares designated for~~ Maximum Amount; and provided, further, that, in the ~~sale by the Company on such day. The gross sales price~~ case 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) at the time of 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 the Agent will be successful in selling the Sharesa Forward Placement Notice, (Bx) 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 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 sum 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 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. iv. The Agent 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) (1) ~~by means~~ the number of ~~ordinary brokers’ transactions between members~~ Confirmation Shares issued under all Confirmations that have settled as of the ~~NYSE that qualify for delivery~~ contemplated date of ~~a Prospectus in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “Continuous Offerings”)~~delivery, (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 agreed by the Company and the Agent pursuant to a Terms Agreement. v. The compensation to the 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 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 for such Shares (the “Net Proceeds”). vi. The Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date Capped Number (as defined in ~~Section 4(k)~~each applicable Confirmation) ~~and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement as if such representation and warranty were made~~ under all Confirmations outstanding as of ~~such date, modified as necessary to relate to~~ the ~~Registration Statement~~ contemplated date of delivery that have not settled and the Prospectus as amended as of such date. Any obligation of the Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b3) 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 Agent shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide Capped Number for the ~~sale of~~ Confirmation related to such Shares to, and the purchase thereof by, the 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 Forward Placement Notice 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares sold pursuant to this Agreement, the Alternative Equity Distribution Agreements and any Terms Agreement not exceed (iy) ~~the Maximum Amount, (ii)~~ 19.99% of the number of shares of ~~the~~ Common Stock ~~available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount~~ outstanding as 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 Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (g) Notwithstanding any other provision date 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 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) of Section 3(g), which shall have independent application.The Placement Notice

Appears in 1 contract

Samples: Equity Distribution Agreement (QualityTech, LP)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales ~~agent,~~ agent and the 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. i. 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 (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 agreed to by the Company and the 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~~ 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 ~~which the NYSE is scheduled to close~~ 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 ~~regular weekday closing time~~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”), ~~(B) the Company has instructed~~ it will notify the Agent by ~~telephone~~ email notice (~~confirmed promptly~~ or other method mutually agreed to in writing by ~~electronic mail~~the parties) containing the parameters in accordance with which it desires Shares to ~~make~~ 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 (Cwhich 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 ~~Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum~~ entire amount of the Shares ~~to be sold~~ covered by the ~~Agent daily as previously~~ 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 ~~to in writing or electronic transmission by~~ that neither the Company nor the Agent ~~(in~~ will have any ~~event not in excess of~~ 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) ~~the amount available for issuance under the Prospectus and the currently effective Registration Statement less~~ an Agent Acceptance or (ii) ~~any amounts already issued and sold~~ 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 ~~Alternative Equity Distribution Agreements) and~~ terms of an Acceptance, the ~~minimum price per Share at which such Shares may be sold~~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 ~~on a particular day, consistent with its normal trading practices, all of the~~ as sales agent Shares designated ~~for~~ in the ~~sale by~~ Acceptance up to the ~~Company on such day. The gross sales price of~~ amount specified, and otherwise in accordance with 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) at the time of sale~~ terms 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~~Acceptance. The Company ~~acknowledges~~ and ~~agrees~~ the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling ~~the Shares,~~ 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 ~~under~~ by 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~~ (b) 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 ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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 (the “~~Board”), or a duly authorized committee thereof, and ~~notified to~~ as set forth in the ~~Agent in writing~~applicable Acceptance. ~~The~~ In addition, the Company or the 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 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. Each of the parties hereto agrees that no such notice shall be effective against the other unless it originates from an individual named on Schedule II and is made to the individuals of the other party named on Schedule II hereto in accordance with this Section 4, as such Schedule may be amended from time to time. ~~iv.~~ (c) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on NASDAQ or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ equal to ~~exceed 2.0~~2% of the gross sales price of the Shares for amounts of 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~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (d) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ NASDAQ each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the Agent with respect to such sales. ~~Such compensation shall~~ For the avoidance of doubt, such written confirmation will 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds provided to the Company ~~on any Settlement Date for~~ no later than the ~~Shares delivered by the Company, the Agent will pay the Company interest based~~ opening of trading on the ~~effective overnight federal funds rate~~ immediately following trading day on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this AgreementNASDAQ. (b) 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 Agent 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 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 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 (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 Agent. (de) Under no circumstances shall the aggregate ~~value~~ offering price or number, as the case may be, of ~~the~~ Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) ~~the Maximum Amount~~set forth in Section 1 of this Agreement, (ii) ~~the number of shares of the Common Stock~~ available for issuance under the Prospectus and the then 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 Agreement by the Board, or a duly authorized committee thereof, and notified to the Agent in writing~~. (e) Except pursuant~~ . In addition, under no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a ~~reoffer of Shares as described in Section 3(c) hereof,~~ price lower than the ~~Company agrees that any offer~~ minimum price therefor authorized from time to ~~sell Shares, any solicitation of an offer to buy Shares~~time by the Company’s Board, or ~~any sales of Shares shall only be effected by or through only one of~~ a duly authorized committee thereof, and notified to 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege writing as set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) applicable Placement Notice. If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement ~~and any Terms Agreement~~ shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. The 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 4 and made in accordance with the terms of the applicable Acceptance will occur on the third business day that is also a trading day for NASDAQ (other than a day on which NASDAQ is scheduled to close prior to its regular weekday closing time) following the trade date on which such sales are made, unless another date shall be agreed to by the Company and the Agent (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by the Company or its transfer agent 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 in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any Settlement Date, the Company shall (i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. (g) ~~Notwithstanding any other provision~~ At each Applicable Time, each Settlement Date and each Representation Date (as such term is defined in Section 6(n) herein), the Company, the Adviser and the Administrator shall be deemed to have affirmed each representation and warranty contained in this Agreement. The obligation of the 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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. (h) 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 Company 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 Company shall in no event request that more than one of Agent or sell shares of Common Stock on the same day; provided, however, that (i) the foregoing limitation shall not apply to sales solely to employees of the Company, the Adviser, the Administrator or their respective affiliates, or to a trustee or other person acquiring such securities for the accounts of such persons and (ii) 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 ~~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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer or sell any Shares~~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 (ii) with respect to the Company’s annual report filings on Form 10-K, during any period commencing upon the 50th day following the end of the Company’s fiscal year 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 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, 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 the 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, or could be deemed to be,~~ is 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Prospect Capital Corp)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares~~ exclusively through the Agent acting as sales agent for the Company or directly to the Agent acting as principal (each, a “Principal Sale”) from time to ~~time through the Agent, acting as sales agent~~time, and the Agent agrees to use its commercially reasonable efforts to ~~sell,~~ sell as sales agent for the Company, the Shares. 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 Annex I. 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 set forth on Annex 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 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) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (iii) this Agreement has been terminated under the provisions of Section 10. 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 Agent 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. Sales of the Shares, if any, through the Agent acting as sales agent will be made by means of ordinary brokers’ transactions on Nasdaq that qualify for delivery of the Prospectus to Nasdaq in accordance with Rule 153 under the 1933 Act or directly to the Agent acting as principal in a Principal Sale will be made through public or private transactions at market prices prevailing at the time of sale, at fixed prices, at negotiated prices, at various prices determined at the time of sale or at prices related to prevailing market prices. i. (b) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the 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 has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C)~~ that the Company has satisfied its obligations under Section 6 of this ~~Agreement~~Agreement and that the Company has instructed the Agent to make such sales. ~~The Company will designate~~ For the ~~maximum amount~~ avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the ~~Shares~~ Company or its Subsidiaries, or to ~~be sold by~~ a trustee or other person acquiring such securities for the accounts of such persons in which KeyBanc is acting for the Company in a capacity other than as Agent ~~daily as previously agreed to in writing or electronic transmission by the Agent (in any event not in excess of (i) the amount available for issuance~~ under ~~the Prospectus and the currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to~~ this ~~Agreement and the Alternative Equity Distribution Agreements) and the minimum price per Share at which such Shares may be sold~~Agreement. Subject to the terms and conditions ~~hereof~~hereof and the Placement Notice, the Agent shall use its commercially reasonable efforts to sell ~~on a particular day, consistent with its normal trading practices,~~ as sales agent 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) at the time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share so designated by the ~~Company at which such Shares may be sold). ii~~Company. The Company ~~acknowledges~~ and ~~agrees~~ 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 ~~it does~~ 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 ~~under~~ by this Agreement, and (C) the Agent shall be under no obligation to purchase Shares on in a ~~principal basis pursuant to this Agreement,~~ Principal Sale in a Principal Sale except as otherwise specifically agreed by each of the Agent and the ~~Company~~Company . ~~iii. The~~ (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 ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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~~ board of ~~Directors (the “Board”)~~directors, or a duly authorized committee thereof, and notified to the Agent in writing. ~~The~~ In addition, the Company may, upon notice to the Agent, suspend the offering of the Shares or the Agent may, upon notice to the ~~other party hereto by telephone (confirmed promptly by electronic mail)~~Company, suspend the offering of the Shares with respect to which the 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 may be given by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged). ~~iv.~~ (d) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant to a Terms Agreement. v.~~ on Nasdaq. The compensation payable to the 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~~ equal to ~~exceed 2.0~~up to 2.00% of the gross ~~sales price~~ sale price, but in any event as specified by the Agent, of the Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection~~ Agreement (~~vi) below~~“Agent Compensation”). 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~~ Agent, acting as principal in a Principal Sale, at a price agreed upon with the Agent at the relevant Applicable Time and pursuant to a ~~Terms Agreement~~separate agreement. The remaining proceeds, after further deduction for any transaction fees imposed ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares . The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. In connection with a Principal 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 for such Principal Sale, the certificates and opinions referred to in Sections 6(c), (d) and (f) each dated as of the Settlement Date, and such other documents as the Agent may reasonably request. Notwithstanding the foregoing, in the event the Company engages the Agent for a sale of Shares that could constitute a “~~Net Proceeds”)~~distribution,” within the meaning of Rule 100 of Regulation M under the 1934 Act, the Company and the Agent will agree to compensation that is customary for the Agent with respect to such transactions. ~~vi. The~~ (e) If acting as a sales agent hereunder, the Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ Nasdaq, each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the 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 Placement Notice 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 Placement Notice by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing. ~~Such compensation~~ 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) If either the Company or the Agent believes that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 1934 Act (applicable to securities with an average daily trading volume of $1,000,000 that are issued by an issuer whose common equity securities have a public float value of at least $150,000,000) are not satisfied with respect to the Company or the Shares, such party shall promptly notify the other party and sales of Shares under this Agreement and any Placement Notice shall be ~~set forth and invoiced~~ suspended until other exemptive provisions have been satisfied in ~~periodic statements from~~ the ~~Agent~~ judgment of each party or the parties mutually agree to the ~~Company, with payment to be made by the Company promptly after its receipt~~ waiver thereof. ~~vii.~~ (h) Settlement for sales of ~~the~~ Shares pursuant to this Section ~~3(a)~~ 2 will occur on the third ~~Business~~ business day that is also a 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 day, 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 for~~ from the sale of such ~~Shares~~Shares equal to the aggregate sales price received by the Agent less the Agent’s Compensation and any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales (“Net Proceeds”). Settlement for all ~~such~~ Shares shall be effected by ~~free~~ book-entry delivery of ~~the~~ Shares to the Agent’s account at The Depository Trust Company ~~(“DTC”) in return for~~ against payments by the Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to ~~the~~ an account designated by the Company. If the Company ~~or its transfer agent (if applicable)~~ shall default on its obligation to deliver ~~the~~ Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (g) Notwithstanding any other provision of this Agreement, the Company and the Agent agree that no sales of Shares shall take place, and 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~~Shares that would be sold, and the Agent shall not be obligated to ~~offer or sell any Shares~~sell, ~~(i)~~ during any period in which the Company’s ixxxxxx xxxxxxx policy, as it exists on the date of the Agreement and as attached hereto as Annex III or as such may be amended from time to time and subsequently provided to the Agent, 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 Agent, for purposes of this paragraph (i) such period shall be deemed to end on the later of (i) the date on which the Company files with the Commission a prospectus supplement under Rule 497 under the 1933 Act relating to the Shares that includes updated financial information as of the end of the Company’s most recent quarterly period or fiscal year, as applicable (the “Quarterly 497 Filing”) 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~~ Company’s trading window reopens following the public release ~~containing, or shall otherwise publicly announce,~~ of its ~~earnings, revenues or other~~ financial 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~~ such quarterly period or ~~periods~~fiscal year, as ~~the case may be, covered by such Earnings Announcement~~applicable. (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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: At the Market Equity Offering Sales Agreement (Fifth Street Finance Corp.)

Sale and Delivery of Shares. (a) 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 the ~~Agent~~Manager, acting as sales agent, and the ~~Agent~~ Manager agrees to use its 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 agreed to by the Company and the ~~Agent~~ 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 has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the ~~Agent~~ Manager daily ~~as previously agreed to in writing or electronic transmission by the Agent~~ (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its ~~commercially~~ reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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 ~~Agent~~ Manager under this Section 3(a) on the Trading Market at the time of 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)~~Shares. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Manager will be successful in selling the Shares, (B) the ~~Agent~~ Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the ~~Agent~~ Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the 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 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. iv. The Agent 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) (1) by 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 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 agreed by the Company and the Agent pursuant to a Terms Agreement. v. The compensation to the 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 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 for such Shares (the “Net Proceeds”). vi. The Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.as

Appears in 1 contract

Samples: At the Market Program Agreement (China Direct Industries, Inc.)

Sale and Delivery of Shares. (a) 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 the ~~Agent~~Managers, acting as sales ~~agent~~agents, and the ~~Agent agrees~~ Managers agree to use ~~its~~ their 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 by either of the Managers on a daily basis or otherwise as shall be agreed to by the Company and ~~the Agent~~ 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 has instructed ~~the Agent~~ such Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum daily amount of the Shares to be sold by ~~the Agent daily~~ such Manager as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by ~~the Agent~~ such Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, ~~the Agent~~ such Manager shall use its ~~commercially~~ reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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 Agent~~ such Manager under this Section 3(a) on Nasdaq at the time of 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)~~Shares. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Managers will be successful in selling the Shares, (B) ~~the Agent~~ no Manager will incur no liability or obligation to the Company or any other person or entity if it such Manager does not sell Shares for any reason other than a failure by ~~the Agent~~ such Manager to use its ~~commercially~~ reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) ~~the Agent~~ no Manager shall be under no any obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by ~~the Agent~~ such Manager and the Company. (iii. ) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ 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 ~~the Agent~~ such Manager in writing. The Company or ~~the Agent~~ any Manager may, upon notice to the other party 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. (iv~~. The Agent~~ ) Each Manager 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 ordinary brokers’ transactions between members of ~~the NYSE~~ Nasdaq that qualify for delivery of a Prospectus to Nasdaq in accordance with Rule 153 ~~under~~ of the Securities 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 agreed by the Company and ~~the Agent~~ such Manager pursuant to a Terms Agreement. v. (v) The compensation to ~~the Agent~~ each Manager for sales of the Shares with respect to which ~~the Agent~~ such Manager acts as sales agent under this Agreement shall be ~~at a mutually agreed rate, not~~ up to ~~exceed 2.0~~3.0% of the gross sales price of 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~~ such Manager acts as principal, in which case the Company may sell Shares to ~~the Agent~~ 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 ~~on the Agent~~ by any governmental or self-regulatory organization in respect of such ~~sales~~sales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi~~. The Agent~~ ) Each Manager acting as sales agent hereunder shall provide written confirmation (which may be by facsimile or electronic mail) to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ 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 to the Company, and the compensation payable by the Company to ~~the Agent~~ such Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from ~~the Agent~~ such Manager to the Company, with payment to be made by the Company promptly after its receipt thereof. (vii. ) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business Day~~ second business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through ~~the Agent~~ a Manager for settlement on such date shall be issued and delivered by the Company to ~~the Agent~~ such Manager against payment of the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to ~~the Agent~~such Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold ~~the Agent~~ such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay ~~the Agent~~ such Manager any commission to which it would otherwise be entitled absent such default. If ~~the Agent~~ any Manager breaches this Agreement by failing to deliver the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees to the Company on any Settlement Date for the Shares delivered by the Company, ~~the Agent~~ such Manager will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to ~~the Agent~~such Manager. (viii. ) At each Applicable Time, Settlement ~~Date,~~ Date and Representation Date (as defined in Section 4(k~~)) and Filing Date (as defined in Section 4(a~~)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent~~ a Manager to use its ~~commercially~~ reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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~~ a Manager of the proposed terms of such Placement. If ~~the Agent~~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 Agent~~ such Manager and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 Agent~~ such Manager unless and until the Company and ~~the Agent~~ 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 ~~the Agent~~ 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 Agent~~such Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by ~~the Agent~~such Manager. The commitment of ~~the Agent~~ 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 ~~the Agent~~ 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 ~~the Agent~~ 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 ~~the Agent~~such Manager. (d) Under no circumstances shall the number and aggregate ~~value~~ amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) the ~~Maximum Amount~~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 ~~Agent~~ Manager acting as sales agent in writing. (e) ~~Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that~~ If any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either the Company or the Agent 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~~ 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. (gf) Notwithstanding any other provision of this ~~Agreement,~~ 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~~Shares that would be sold, and ~~the Agent~~ no Manager shall ~~not~~ be obligated to ~~offer or sell any Shares~~sell, ~~(i)~~ 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 ~~could~~ would reasonably be deemed to be, in possession of material non-public information; provided that, or unless otherwise agreed between the Company and the Managers, for purposes of this paragraph (iif) ~~except as provided in Section 3(h) below, at any time during the~~ such period ~~commencing~~ shall be deemed to end 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 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 Company’s next subsequent Annual Report on Form 10-K ~~that includes consolidated financial statements as of and for the same period~~ or ~~periods~~Quarterly Report on Form 10-Q, 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 filed 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (PhaseBio Pharmaceuticals Inc)

Sale and Delivery of Shares. ~~(a) Subject~~ On the basis of the representations, warranties and agreements herein contained, and 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~~ through or to ~~time through~~ the ~~Agent~~Managers, ~~acting~~ as sales ~~agent~~agents and/or principals, as and when it provides instructions, in its discretion, for the sale of the Shares, and ~~the Agent~~ 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~~terms 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. i. (a) The Shares are to be sold by one of the Managers on a daily basis or otherwise as shall be mutually agreed to upon by the Company and the ~~Agent~~ 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 (A) the ~~NYSE is scheduled~~ Company, through any of the individuals listed as authorized representatives of the Company on Schedule A hereto, as such Schedule A may be amended from time to ~~close prior to its regular weekday closing time~~time (the “Authorized Representatives”), ~~(B) the Company~~ has instructed such Manager (with notice of such instruction to each of the ~~Agent by telephone (confirmed promptly by electronic mail~~other Authorized Representatives at such time) to make such sales and (CB) the Company has satisfied its obligations under ~~Section~~ Sections 4, 5 and 6 ~~of this Agreement~~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 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 Exhibit 3(a)(i) hereto) the maximum amount of the Shares to be sold by ~~the Agent~~ such Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by ~~the Agent~~ such Manager (in any event the Company shall not instruct such Manager to sell Shares in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the ~~currently effective~~ Registration Statement ~~less (ii) any amounts already~~ 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, any minimum price below which sales of the Shares may not be 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 ~~Agreement and~~ Section 3(a) is referred to as the ~~Alternative Equity Distribution Agreements) and~~ “Selling Manager”. For the ~~minimum price per Share at~~ 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 ~~such Shares may be sold~~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 ~~hereof~~of this Section 3(a), the ~~Agent shall use its commercially reasonable efforts to~~ Managers may sell ~~on a particular day, consistent with its normal trading practices, all of~~ the Shares ~~designated for~~ by any method permitted by law including, without limitation, an “at the ~~sale~~ market offering” as defined in Rule 415 under the Act or sales made by means of ordinary brokers’ transactions, to or through a market maker at market prices prevailing at the ~~Company on~~ time of sale, at prices related to prevailing market prices or at negotiated prices (such ~~day~~transactions are hereinafter referred to as “At the Market Offerings”). ~~The gross sales price~~ Subject to the terms and conditions of ~~the Shares sold under~~ this Section 3(a) ~~shall be~~ and the ~~market price for shares~~ other terms and conditions specified herein (including, without limitation, the accuracy of the ~~Company’s Common Stock sold by~~ representations and warranties of the ~~Agent under this Section 3(a) at~~ Company and the ~~time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share designated~~ performance by the Company ~~at which such Shares may be sold~~of its covenants and other obligations contained herein and the satisfaction of the additional conditions specified in Section 6 hereof)~~. ii. The Company 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 or any other person or entity if it does not sell Shares for any reason other than a failure by the Agent to applicable Manager shall use its commercially reasonable efforts consistent with its normal trading and sales practices to offer 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 all of the Shares ~~for any reason and at any time~~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 ~~suspension~~ obligation, in the event that an offer or ~~termination shall not affect or impair~~ sale of the ~~parties~~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’ ~~respective obligations with respect~~ transactions between members of the Nasdaq that qualify for delivery of a Prospectus to the ~~Shares sold hereunder prior to~~ Nasdaq in accordance with Rule 153 under the ~~giving of such notice~~Act. ~~iv. The Agent~~ (b) Each of the Managers hereby covenants and agrees not to make any sales of the Shares on behalf of the ~~Company~~ Company, pursuant to this Section ~~3(a)~~3, other than (A) ~~(1)~~ by means of ~~ordinary brokers’ transactions between members of~~ At the 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 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 Agent pursuant to a Terms Agreement~~such Manager. v. (c) The compensation to each Manager, as agent of the ~~Agent~~ Company, for sales of the Shares ~~with respect to which the Agent acts as sales agent under this Agreement~~ hereunder shall be at a mutually agreed rate, not to exceed 2.0% of the ~~gross sales~~ actual sale execution price of 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) 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 Agreement3. 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 for such Shares (the “Net Proceeds”). vi(d) 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”). ~~The Agent~~ 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. (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 ~~facsimile or~~ electronic mail) ~~to the Company promptly~~ as soon as is reasonably practicable following the close of trading on the ~~NYSE~~ Nasdaq each day in which the Shares are sold ~~under this~~ pursuant to Section ~~3(a)~~ 3 setting forth (i) the number of ~~the~~ Shares sold on such day, ~~the aggregate gross sales proceeds and~~ (ii) the Net Proceeds to the ~~Company,~~ Company and (iii) the ~~compensation~~ commission payable by the Company to ~~the Agent~~ such Manager 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~~sale of Shares. ~~vii.~~ (g) Settlement for sales of the Shares pursuant to this ~~Section 3(a)~~ Agreement will occur on the ~~third Business Day~~ second business day that is also a trading day on the Nasdaq following the date on which such sales are made (each such ~~day~~date, a “Settlement Date”). On each Settlement Date, the Shares sold through ~~the Agent~~ a Manager for settlement on such date shall be issued and delivered by the Company to ~~the Agent~~ such Manager against payment of the Net ~~Proceeds~~ Proceeds, or, at such Manager’s election, the gross proceeds, for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to such Manager’s account, or to the ~~Agent~~account of such Manager’s ~~account~~ designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DTC”) 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 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~~ Company, or its transfer agent (if applicable) ), shall default on 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 Agent~~ such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay ~~the Agent~~ such Manager any commission to which it would otherwise be entitled absent such default. If Any Authorized Representative shall be a permissible contact person for the ~~Agent breaches this Agreement by failing to deliver the Net Proceeds~~ Company for all matters related to the ~~Company on any Settlement Date for~~ settlement of the transfer of the Shares ~~delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent~~through DTC for purposes of this Section. ~~viii.~~ (h) At each ~~Applicable Time, Settlement Date,~~ Representation Date ~~(as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)),~~ the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement 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~~Agreement. Any obligation of ~~the Agent~~ any Manager to use its commercially reasonable efforts to sell the Shares ~~on behalf of the Company~~ shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 ~~of this Agreement~~hereof. (bi) If Under no circumstances shall the ~~Company wishes to issue and sell~~ aggregate gross proceeds of the Shares sold pursuant to this Agreement ~~and~~ exceed the ~~Alternative Equity Distribution Agreements but other than as~~ lesser of (A) the amount set forth in Section ~~3(a~~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 ~~(each, a “Placement”), it will notify~~ exceed the ~~Agent~~ amount of Shares authorized to be issued and sold from time to time under this Agreement by the Board of Directors of the ~~proposed terms of such Placement. If~~ Company, or a duly authorized committee thereof, and notified to the ~~Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason~~ Managers 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 Placementwriting. The ~~terms set forth in a Terms Agreement will not be binding on~~ Managers shall have no responsibility for maintaining records with respect to Shares available for offer or sale under the ~~Company~~ Registration Statement or for determining the ~~Agent unless and until~~ aggregate gross proceeds, number or minimum price of Shares duly authorized by 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 controlCompany. (cj) Each offer and sale of the Shares through or to ~~the Agent~~ any Manager shall be made in accordance with the terms of this Agreement ~~and~~or, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Agent. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Agent. The ~~commitment of the Agent~~ applicable Manager’s commitment, if any, to purchase Shares from the ~~Shares pursuant to any Terms Agreement~~ 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. ~~Each~~ At the time of each Terms Agreement the applicable Manager shall specify the ~~number~~ requirements, if any, for the officers’ certificate, opinions, letters 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,~~ counsel and default by, underwriters acting together with the Agent 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’ comfort 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 sold~~ due diligence session 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 duly authorized committee thereof, and notified to the Agent in writing. (ek) ~~Except pursuant~~ Subject to ~~a reoffer of Shares~~ the limitations set forth herein and except as ~~described in Section 3(c) hereof,~~ otherwise may be mutually agreed upon by the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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~~Managers, ~~however, that (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii)~~ sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made effected pursuant to this Agreement ~~or an Alternative Equity Distribution Agreement. (f) If either~~ may not be requested by 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, 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. (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 need not be ~~obligated to offer or sell~~ made by 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~~ Manager during the ~~period commencing on the seventh Business Day~~ 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) at any time from and including an Announcement Date through and including the ~~time that is 24 hours after~~ later to occur of (A) the ~~time~~ day 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, and (B) 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. (hl) ~~If the~~ The Company ~~wishes to offer, sell or deliver Shares at any time during the period from~~ acknowledges and ~~including an Announcement Date through and including the time~~ agrees that ~~is 24 hours after the corresponding Filing Time, the Company shall~~ (i) ~~prepare and deliver to~~ there can be no assurance that any Manager will be successful in selling 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)Shares, (ii) ~~provide~~ no Manager will incur liability or obligation to the ~~Agent~~ 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 ~~officers’ certificate~~terms of this Agreement, ~~accountants’ letter~~ and ~~opinions~~ (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 ~~letters of counsel called for by Sections 4(k), (l),~~ the Company pursuant to a Terms Agreement. (m) ~~and (n) hereof; respectively, (iii) afford~~ If either the ~~Agent~~ Company or the ~~opportunity~~ Managers has reason to ~~conduct a due diligence review~~ believe that the exemptive provisions set forth in ~~accordance with Section 4(o) hereof and (iv) file such Earnings 8-K with the Commission, then the provisions of clause (iii~~Rule 101(c)(1) of ~~Section 3(g)~~ Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall ~~not~~ promptly notify the other parties, and sales of the Shares under this Agreement shall be ~~applicable for the period from and after the time at which the foregoing conditions shall~~ suspended until that or other exemptive provisions have been satisfied ~~(or, if later,~~ in 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~~ judgment 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) of Section 3(g), which shall have independent applicationeach party.

Appears in 1 contract

Samples: Equity Distribution Agreement (Lucid Group, Inc.)

Sale and Delivery of Shares. (a) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, (A) the Company ~~agrees to issue~~ and ~~sell Shares~~ the Manager agree that the Company may from time to time seek to sell Primary Shares through the ~~Agent~~Manager, acting as sales agent, or directly to the Manager acting as principal (a “Primary Sale”), and (B) if the Company and the ~~Agent agrees~~ Forward Counterparty enter into a Forward, the Forward Counterparty will seek to ~~use its reasonable efforts to sell~~sell Hedging Shares through the Forward Seller (a “Hedging Sale”), as ~~sales agent for the Company, the Shares on the following terms.~~follows: i. (i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by (x) in respect of any Primary Sale, the Company and the ~~Agent~~ Manager (acting as sales agent) and (y) in respect of any Hedging Sale, the Forward Seller and the Forward Counterparty in accordance with the trading parameters set forth in the applicable Forward (which parameters, for the avoidance of doubt, may be modified by the Company as set forth in, and subject to the terms of, such Forward) on any day that (A) is a trading day for the ~~NYSE~~ New York Stock Exchange (“NYSE”) (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) (x) in respect of any Primary Sale, the Company has instructed the ~~Agent~~ Manager (acting as sales agent) by telephone (confirmed promptly by electronic mail) to make such sales and the Manager has accepted such instruction and (y) in respect of any Hedging Sale, which day falls within the “Hedge Period” (as defined in the Master Confirmation) for such Forward and there is a Forward Confirmation in effect, and (C) the Company has satisfied its obligations under Section 6 of this Agreement. ~~The~~ In respect of any Primary Sales, the Company will designate the maximum amount of the Primary Shares to be sold by the ~~Agent~~ Manager (as sales agent) daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. . (ii) Subject to the terms and conditions hereof, in respect of any Primary Sale, the ~~Agent~~ Manager (acting as sales agent) shall use its commercially reasonable efforts to execute any Company order submitted to it hereunder to sell ~~on a particular day, consistent~~ Primary Shares and with ~~its normal trading practices, all of~~ respect to which the ~~Shares designated for the sale by the Company on such day. The gross~~ Manager has agreed to act as 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) at the time of 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). iiagent. The Company acknowledges and agrees that (Ai) there can be no assurance that the ~~Agent~~ Manager (acting as sales agent) will be successful in selling ~~the~~ any Primary Shares, (Bii) the ~~Agent~~ Manager (in such capacity) will incur no liability or obligation to the Company or any other person or entity if it does not sell any Primary Shares for any reason other than a failure by the ~~Agent~~ Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Primary Shares as required under this ~~Agreement,~~ Agreement and (Ciii) the ~~Agent~~ Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Manager and the ~~Company~~Company in a Terms Agreement entered into pursuant to Section 3(b) hereof. (iii) Subject to the terms and conditions hereof, in respect of any Hedging Sale, Forward Seller, when acting in its capacity as such, shall use its commercially reasonable efforts to solicit purchases of the Hedging Shares on behalf of the Forward Counterparty subject to the trading parameters set forth in the respective Forward. The Company acknowledges and agrees that (i) there can be no assurance that the Forward Seller will be successful in selling any Hedging Shares, (ii) the Forward Seller will incur no liability or obligation to the Company or any other person or entity if it does not sell any Hedging Shares for any reason other than a failure by the Forward Seller to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Hedging Shares as required under this Agreement, and (iii) no sales of any Hedging Shares in respect of a Forward may take place until and unless the “Effective Date” (as defined in the Master Confirmation) in respect of such Forward has occurred. (iv) Sales of the Primary Shares, if any, through the Manager (acting as sales agent) or by the Manager (acting as principal) or the Hedging Shares by the Forward Seller will be made in sales deemed to be “at the market offerings” as defined in Rule 415, including by sales made by means of ordinary brokers’ transactions on or through the NYSE or another market for our Common Stock, sales made to or through a market maker other than on an exchange, including in the over-the-counter market, in negotiated transactions (including block trades), at market prices prevailing at the time of sale or at negotiated prices, through a combination of any such methods of sale, or any other method permitted by law. (v) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ Manager (acting as sales agent) shall not be obligated to use its commercially reasonable efforts to ~~sell~~sell and the Manager (acting as principal) shall not be obligated to purchase, any Primary 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~~ Manager in writing. The Company shall not specify a price lower than such minimum price for sale of any Hedging Share in the trading parameters for any Forward. (vi) The Company or the ~~Agent~~ Manager (in any capacity) may, upon notice to the other ~~party~~ parties hereto by telephone (confirmed promptly by electronic mail), suspend the offering of ~~the~~ any Shares for any reason and at any time; provided, however, that such suspension or termination shall not affect or impair the parties’ respective rights and obligations with respect to the Shares sold hereunder prior to the giving of such ~~notice~~notice and, to the extent such suspension relates to any offering of the Hedging Shares, any of the Company’s and the Forward Counterparty’s respective rights and obligations under the applicable Forward. ~~iv. The Agent 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~~ (Avii) (1) by 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 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 agreed by the Company and the Agent pursuant to a Terms Agreement. v. The compensation to the ~~Agent~~ Manager for sales of the Primary Shares with respect to which the ~~Agent~~ Manager acts as sales agent under this Agreement shall be ~~at a mutually agreed rate, not~~ up to ~~exceed 2.0~~1.0 % of the gross sales price of the Shares sold pursuant to this Section 3(a~~) and~~ ), payable as described in the succeeding subsection (viviii) below. The foregoing rate of compensation shall not apply when the ~~Agent~~ Manager acts as ~~principal~~principal pursuant to the Terms Agreement, in which case the Company may sell Primary Shares to the ~~Agent~~ Manager as principal at a price to be mutually agreed upon by the Company and the Manager at the relevant Applicable Time pursuant to a Terms Agreement. The remaining ~~proceeds~~proceeds of any sale of the Primary Shares by the Manager acting as sales agent or principal, after further deduction for any transaction fees imposed ~~on the Agent~~ by any governmental or self-regulatory organization in respect of such ~~sales~~sales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Primary Shares (the “Net Primary Proceeds”). ~~vi. The Agent~~ (viii) In respect of any Primary Sale, the Manager shall provide a written confirmation (which may be by facsimile or electronic mail) to the Company ~~promptly~~ following the close of trading on the NYSE each day in which the Primary Shares are sold under this Section 3(a) by the Manager as sales agent or principal, setting forth the number of the Primary Shares sold on such day, the aggregate gross sales proceeds and the Net Primary Proceeds to the Company, and the compensation payable by the Company to the ~~Agent~~ Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the ~~Agent~~ Manager to the Company, with payment to be made by the Company promptly after its receipt thereof. In respect of any Hedging Sale, the Forward Counterparty will determine the “Hedge Reference Price” (as defined in the Master Confirmation) for the applicable Forward pursuant to the terms of such Forward, including as to provision of any applicable back-up calculations therefor. ~~vii.~~ (ix) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business Day~~ first business day (or any such earlier day as is industry practice for regular-way trading) that is also a trading day for the NYSE, following the trade date on which such sales are ~~made~~ made, unless another date shall be agreed by the Company, the Manager and, in respect of any sale of Hedging Shares, the Forward Counterparty (each such day, a “Settlement Date”). On each Settlement Date for the sale of any Shares through the Manager as sales agent for the Company or to the Manager acting as principal (each such date, a “Direct Settlement Date”), the Shares sold ~~through the Agent~~ for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Direct Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. ~~If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any~~ On each Settlement Date for the sale of any Hedging Shares through the Manager as the Forward Seller (each such day, a “Forward Settlement Date”), such Hedging Shares shall be delivered ~~by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due~~ to the ~~Agent~~Forward Seller in such manner and at such time as may be agreed between the Forward Counterparty and the Forward Seller. ~~viii.~~ (x) At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k~~)) and Filing Date (as defined in Section 4(a~~)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Primary Shares on behalf of the Company and any obligation of the Forward Seller to use its commercially reasonable efforts to sell the Hedging Shares on behalf of the Forward Counterparty shall be subject to the continuing accuracy of the representations and warranties of the Company ~~herein~~herein (and the completion of any reasonable diligence to verify such accuracy by the Manager in the applicable capacity), to the performance by the Company of 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 Primary 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~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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 ~~Agent~~ Manager and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Manager unless and until the Company and the ~~Agent~~ 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 Primary Shares to the ~~Agent~~ Manager (acting, respectively, as sales agent or 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 Primary Shares to, and the purchase thereof by, the ~~Agent~~Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Manager. The commitment of the ~~Agent~~ Manager to purchase the Primary 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 Primary Shares to be purchased by the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~Manager. (d) Under no circumstances shall the number and aggregate ~~value~~ amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) the ~~Maximum Amount~~aggregate number set forth in Section 1, or (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 Agent in writingStatement. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either ~~the Company or the Agent~~ 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. (gf) ~~Notwithstanding any other provision~~ Subject to such further limitations on offers and sales of ~~this Agreement~~Shares or delivery of instructions to offer and sell Primary Shares as are set forth herein and as may be mutually agreed upon by the Company and the Manager, 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~~Primary Shares that would be sold, and the ~~Agent~~ Manager shall not be obligated to ~~offer or sell any Shares~~sell, (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~~ tenth business day prior to the ~~date (each, an “Announcement Date”) on which~~ time 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. (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~~ during any other period in which the ~~Agent with the officers’ certificate~~Company is, ~~accountants’ letter~~ or could be deemed to be, in possession of material non-public information, 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 during the period starting 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 (Aexcluding) the ~~delivery~~ “Hedge Period Outside Date” (as defined in the Master Confirmation) until the termination of ~~any officers’ certificate, accountants’ letter and opinions and letters of counsel~~ this Agreement 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) of Section 3(g), which shall have independent application8 hereof.

Appears in 1 contract

Samples: Sales and Registration Agreement (Amc Entertainment Holdings, Inc.)

Sale and Delivery of Shares. (a) Subject to the terms and conditions set forth herein, (a) the Company agrees to issue and sell to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price of $29.204 per share, the number of Firm Shares set forth opposite the name of such Underwriter in ~~reliance upon~~ Schedule I hereto and (b) in the ~~representations~~ event and ~~warranties herein set forth~~to the extent that the Underwriters shall exercise the election to purchase Option Shares as provided below, the Company agrees to issue and sell ~~Shares from time~~ to ~~time through~~ each of the ~~Agent, acting as sales agent~~Underwriters, and each of the ~~Agent agrees~~ Underwriters agrees, severally and not jointly, to ~~use its reasonable efforts to sell, as sales agent for~~ purchase from the Company, at the purchase price per share set forth in clause (a) of this Section 2, that portion of the number of Option Shares on as to which such election shall have been exercised (to be adjusted by the ~~following terms~~Representatives so as to eliminate fractional shares) determined by multiplying such number of Option Shares by a fraction, the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of Option Shares that all of the Underwriters are entitled to purchase hereunder. i. (b) The ~~Shares are~~ Company hereby grants to ~~be sold on a daily basis or otherwise as~~ the several Underwriters the right to purchase at their election up to 2,642,617 Option Shares, at the purchase price per share set forth in the paragraph above, for the sole purpose of covering sales of shares in excess of the number of Firm Shares, provided that the purchase price per Option Share shall be ~~agreed~~ reduced by an amount per share equal to any dividends or distributions declared by the Company and payable on the ~~Agent~~ 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~~ Option Shares. Any such election to close prior to its regular weekday closing time), (B) the Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Agent daily as previously agreed to in writing or electronic transmission by the Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) and the minimum price per Share at which such purchase Option Shares may be ~~sold. Subject to~~ exercised only by written notice from 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 market price for shares of the Company’s Common Stock sold by the Agent under this Section 3(a) at the time of 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 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 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 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 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. iv. The Agent 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) (1) by 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 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 agreed by the Company and the Agent pursuant to a Terms Agreement. v. The compensation to the 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 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 for such Shares (the “Net Proceeds”). vi. The Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE 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 Representatives to the Company, ~~and~~ given within a period of 30 calendar days after the ~~compensation payable by~~ date of this Agreement, setting forth the ~~Company to the 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~~ aggregate number of Option Shares to be ~~made by the Company promptly after its receipt thereof. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following~~ purchased and the date on which such ~~sales~~ Option Shares are ~~made (each such day~~to be delivered, ~~a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be issued and delivered~~ as determined by the ~~Company to~~ Representatives but in no event earlier than the ~~Agent against payment~~ First Time of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date Delivery (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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 discretion4 hereof) or, ~~following discussions with~~ unless the ~~Company wishes to accept amended terms, the Agent~~ Representatives and the Company ~~will enter into a Terms Agreement~~otherwise agree in writing, ~~in substantially~~ earlier than two or later than ten business days after the ~~form of Annex I hereto, setting forth the terms~~ date 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 controlnotice. (c) Each sale of the Shares to the Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Underwriting Agreement (Zions Bancorporation /Ut/)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the ~~Agent,~~ Agent acting as sales agent, from time to time, and the 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 Agent acting as sales agent will be made (i) by means of ordinary brokers’ transactions on the ~~following terms~~NYSE or any other trading market for the Common Stock, and any sales to or through a market maker, at prices related to prevailing market prices or, (ii) in privately negotiated transactions at negotiated prices but, in the case of this clause (ii), only with the prior 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 Securities Act (or an exemption from such registration), or another offering under the Registration Statement, provided the Agent is given notice in accordance with Section 3(p). i. (b) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the 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), (Beach, a “Trading Day”) ~~the Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C)~~ that the Company has satisfied its obligations under Section 6 of this Agreement and that the Company has instructed the Agent to make such sales. 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 such securities for the accounts of such persons in which Xxxxxx Xxxxxxxx is acting for the Company in a capacity other than as Agent under this Agreement. ~~The~~ On any Trading Day, the Company may instruct the Agent by telephone (confirmed promptly by telecopy or email, which confirmation will ~~designate~~ be promptly acknowledged by the Agent) as to the maximum ~~amount~~ number of ~~the~~ Shares to be sold by the Agent ~~daily as previously agreed to in writing or electronic transmission by the Agent~~ on such day (in any event not in excess of ~~(i)~~ the ~~amount~~ number available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Whether or not the Company makes such a designation on any Trading Day, the Agent may present to the Company indications of interest it receives from time to time with respect to the Shares, which the Company may or may not act upon, in its sole discretion. 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,~~ as sales agent 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) at the time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share so designated by the ~~Company~~ Company, and such sales will be made only by methods deemed to be an “at ~~which such Shares may be sold). ii~~the market offering” as defined in Rule 415 of the 1933 Act Regulations. The Agent will conduct all transactions hereunder in accordance with applicable law, including Regulation M under the 1934 Act. The Company ~~acknowledges~~ and ~~agrees~~ 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 ~~it does~~ 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 ~~under~~ by 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~~basis. ~~iii. The~~ (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 ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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~~ board of ~~Directors (the “Board”)~~directors, or a duly authorized committee thereof, and notified to the Agent in writing. ~~The~~ In addition, the Company may, upon notice to the Agent, suspend the offering of the Shares or the Agent may, upon notice to the ~~other party hereto by telephone (confirmed promptly by electronic mail)~~Company, suspend the offering of the Shares with respect to which the 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 may be given by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged). ~~iv. The Agent 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~~ (Ad) (1) by 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 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 agreed by the Company and the Agent pursuant to a Terms Agreement. v. The compensation payable to the 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~~ equal to ~~exceed 2.0~~3% of the gross sales price of the Shares for amounts of 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~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (e) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on the ~~NYSE~~ NYSE, each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to ~~the~~ such Agent with respect to such sales~~. Such compensation~~ . (f) Under no circumstances shall be 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, (ii) available for issuance under the Prospectus and ~~invoiced in periodic statements~~ 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 ~~Company, with payment to be made by the Company promptly after its receipt thereof~~Agent in writing. ~~vii.~~ (g) Settlement for sales of ~~the~~ Shares pursuant to this Section ~~3(a)~~ 2 will occur on the third ~~Business~~ business day that is also a 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 day, 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 ~~for~~ from the sale of such Shares. Settlement for all ~~such~~ Shares shall be effected by ~~free~~ book-entry delivery of ~~the~~ Shares to the Agent’s account at The Depository Trust Company ~~(“DTC”) in return for~~ against payments by the Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to ~~the~~ an account designated by the Company. If the Company ~~or its transfer agent (if applicable)~~ shall default on its obligation to deliver ~~the~~ Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Agent any commission to which it would otherwise be entitled absent such default~~. If~~ . (h) Notwithstanding any other provision of this Agreement, the Company and the Agent ~~breaches this Agreement by failing to deliver the Net Proceeds to~~ agree that no sales of Shares shall take place, and the Company on shall not request the sale of any ~~Settlement Date for~~ Shares that would be sold, and the ~~Shares delivered by~~ Agent shall not be obligated to sell, during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the ~~Agent will pay~~ date of the Agreement or is hereafter 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 ~~interest based~~ is, or could 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 end on the ~~effective overnight federal funds rate~~ date on ~~such unpaid amount less any compensation due to~~ which the ~~Agent~~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.~~ (i) At each Applicable Time, Settlement Date, ~~Representation~~ Registration Amendment Date ~~(as defined in Section 4(k))~~ and ~~Filing Date (as defined in Section 4(a))~~each Company Periodic Report Date, the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement 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~~Agreement. Any obligation of the 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 herein, to the performance by the Company of 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 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: At the Market Equity Offering Sales Agreement (FutureFuel Corp.)

Sale and Delivery of Shares. (a) 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 the ~~Agent~~Managers, acting as sales ~~agent~~agents, and the ~~Agent agrees~~ Managers agree to use ~~its~~ their reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. ~~i. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by~~ (i) Each time that the Company wishes to issue and ~~the Agent 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”), it will notify a Manager (Bthe “Designated Manager”) ~~the Company has instructed the Agent~~ by ~~telephone~~ email notice (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Agent daily as previously or other method mutually agreed to in writing ~~or electronic transmission~~ by the ~~Agent~~ parties) (a “Placement Notice”) containing the 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 in any ~~event not in excess of (i) the amount available for issuance under the Prospectus~~ Trading Day and ~~the currently effective Registration Statement less (ii)~~ any ~~amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) and the~~ minimum price ~~per Share at~~ below which sales may not be made, a form of which containing such ~~Shares may be sold~~minimum sales parameters necessary is attached hereto as Schedule 1. Subject to the terms and conditions hereof, the ~~Agent~~ Designated Manager shall use its ~~commercially~~ reasonable efforts to sell ~~on a particular day, consistent with its normal trading practices,~~ all of the Shares ~~designated for~~ subject to a Placement Notice in the ~~sale~~ time frame specified therein. (ii) The Placement Notice shall originate from any of the individuals from the Company set 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 be amended from time to time. The Placement Notice shall be effective upon receipt by the ~~Company on such day. The gross sales price~~ Designated Manager unless and until (A) the entire amount of the Shares to be sold under ~~this Section 3(a~~the Placement Notice have been sold, (B) shall be the market price for shares of the Company’s Common Stock sold by the Agent under this Section 3(a) at the time of 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~~ suspends or terminates the Placement Notice for any reason in its sole discretion, (C) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice or (D) 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 obligation whatsoever with respect to a Placement of any Shares ~~may be sold)~~unless and until the Company delivers a Placement Notice to the Designated Manager, and then only upon the terms specified therein and herein. ~~ii.~~ (iii) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Designated Manager will be successful in selling the Shares, (B) the ~~Agent~~ 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 ~~Agent~~ Designated 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 ~~Agent~~ 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 ~~Agent~~ Designated Manager and the Company. ~~iii.~~ (iv) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ 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 ~~Agent~~ Designated Manager in writing. The Company or the ~~Agent~~ Designated 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 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. ~~iv.~~ (v) The ~~Agent~~ Designated Manager 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 ordinary brokers’ transactions between members of the ~~NYSE~~ Nasdaq Stock Market LLC that qualify for delivery of a Prospectus to Nasdaq Stock Market LLC 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 agreed by the Company and the ~~Agent~~ Designated Manager pursuant to a Terms Agreement. v. (vi) The compensation to the ~~Agent~~ Designated Manager for sales of the Shares with respect to which the ~~Agent~~ Designated Manager acts as sales agent under this Agreement shall be ~~at a mutually agreed rate, not to exceed 2.0~~3.0% of the gross sales price of the Shares sold pursuant to this Section 3(a) and payable as described in the succeeding subsection (viviii) below. The foregoing rate of compensation shall not apply when the ~~Agent~~ Designated Manager acts as principal, in which case the Company may sell Shares to the ~~Agent~~ 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 ~~on the Agent~~ by any governmental or self-regulatory organization in respect of such ~~sales~~sales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). ~~vi.~~ (vii) The ~~Agent~~ Designated Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company ~~promptly~~ following the close of trading on the ~~NYSE~~ 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 to the Company, and the compensation payable by the Company to the ~~Agent~~ Designated Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the ~~Agent~~ Designated Manager to the Company, with payment to be made by the Company promptly after its receipt thereof. ~~vii.~~ (viii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business Day~~ second business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Designated Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Designated Manager against payment of the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~Designated Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Designated Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Designated Manager any commission to which it would otherwise be entitled absent such default. If the ~~Agent~~ Designated Manager breaches this Agreement by failing to deliver the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees to the Company on any Settlement Date for the Shares delivered by the Company, the ~~Agent~~ Designated Manager will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the ~~Agent~~Designated Manager. ~~viii.~~ (ix) At each Applicable ~~Time, Settlement Date,~~ Time and Representation Date (as defined in Section 4(k~~)) and Filing Date (as defined in Section 4(a~~)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ 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 herein, to the performance by the Company of 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 ~~and the Alternative Equity Distribution Agreements~~ but other than as set forth in Section 3(a) of this ~~Agreement (each, a “Placement”)~~Agreement, it will notify the ~~Agent~~ Designated Manager of the proposed terms of such Placement. If the ~~Agent~~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 ~~Agent~~ Designated Manager and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Designated Manager unless and until the Company and the ~~Agent~~ 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 the ~~Agent~~ Designated 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 ~~Agent~~Designated Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Designated Manager. The commitment of the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~Designated Manager. (d) Under no circumstances shall the number or aggregate ~~value~~ dollar amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) the ~~Maximum Amount~~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 ~~Agent~~ Designated Manager in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either ~~the Company or the Agent~~ 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. (gf) 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~~Shares that would be sold, and the ~~Agent~~ Designated Manager shall not be obligated to ~~offer or sell any Shares~~sell, ~~(i)~~ during any period in which the Company is, or ~~could~~ would reasonably be deemed to be, in possession of material non-public information~~, or~~ . (iig) ~~except as provided in Section 3(h) below, at any time during the period commencing on the seventh Business Day prior~~ With respect to the ~~date (each~~offering and sale of the Shares pursuant to this Agreement, the Company agrees that any offer to sell the Shares, any solicitation of an ~~“Announcement Date”)~~ offer to buy the Shares, and any sales of the Shares shall only be effected by or through a single Manager on ~~which~~ any single given day, and the Company shall ~~issue a press release containing,~~ in no event request that more than one Manager offer or ~~shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including~~ sell 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~~ Agreement on 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) of Section 3(g), which shall have independent applicationsame day.

Appears in 1 contract

Samples: Equity Distribution Agreement (Millendo Therapeutics, Inc.)

Sale and Delivery of Shares. (a) 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 the ~~Agent~~Manager, acting as sales agent, and the ~~Agent~~ Manager agrees to use its reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. ~~i. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by~~ (i) Each time that the Company wishes to issue and ~~the Agent 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”), it will notify the Manager by email notice (B) the Company has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Agent daily as previously or other method mutually agreed to in writing ~~or electronic transmission~~ by the ~~Agent~~ parties) (a “Placement Notice”) containing the 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 in any ~~event not in excess of (i) the amount available for issuance under the Prospectus~~ Trading Day and ~~the currently effective Registration Statement less (ii)~~ any ~~amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) and the~~ minimum price ~~per Share at~~ below which sales may not be made, a form of which containing such ~~Shares may be sold~~minimum sales parameters necessary is attached hereto as Schedule 1. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its ~~commercially~~ reasonable efforts to sell ~~on a particular day, consistent with its normal trading practices,~~ all of the Shares ~~designated for~~ subject to a Placement Notice in the ~~sale~~ time frame specified therein. (ii) The Placement Notice shall originate from any of the individuals from the Company set 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 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 the ~~Company on such day. The gross sales price~~ Manager unless and until (i) the entire amount of the Shares to be sold under ~~this Section 3(a~~the Placement Notice have been sold, (ii) shall be the market price for shares of the Company’s Common Stock sold by the Agent under this Section 3(a) at the time of 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~~ 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 or any Shares ~~may be sold)~~unless and until the Company delivers a Placement Notice to the Manager, and then only upon the terms specified therein and herein. ~~ii.~~ (iii) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Manager will be successful in selling the Shares, (B) the ~~Agent~~ Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the ~~Agent~~ Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Manager and the Company. ~~iii.~~ (iv) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ 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 ~~Agent~~ Manager in ~~writing~~writing in the Placement Notice. The Company or the ~~Agent~~ Manager may, upon notice to the other party 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. ~~iv.~~ (v) The ~~Agent~~ Manager 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 ordinary brokers’ transactions between members of the ~~NYSE~~ Nasdaq Stock Market LLC that qualify for delivery of a Prospectus to the Nasdaq Stock Market LLC 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 agreed by the Company and the ~~Agent~~ Manager pursuant to a Terms Agreement. v. (vi) The compensation to the ~~Agent~~ Manager for sales of the Shares with respect to which the ~~Agent~~ Manager acts as sales agent under this Agreement shall be ~~at a mutually agreed rate, not~~ up to ~~exceed 2.0~~3.0% of the gross sales price of the Shares sold pursuant to this Section 3(a) and payable as described in the succeeding subsection (viviii) below. The foregoing rate of compensation shall not apply when the ~~Agent~~ Manager acts as principal, in which case the Company may sell Shares to the ~~Agent~~ 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 ~~on the Agent~~ by any governmental or self-regulatory organization in respect of such ~~sales~~sales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). ~~vi.~~ (vii) The ~~Agent~~ Manager shall provide written confirmation (which may be by ~~facsimile or~~ electronic mail) to the Company ~~promptly~~ following the close of trading on ~~the NYSE~~ Nasdaq each day in on 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 to the Company, and the compensation payable by the Company to the ~~Agent~~ Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the ~~Agent~~ Manager to the Company, with payment to be made by the Company promptly after its receipt thereof. ~~vii.~~ (viii) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business Day~~ second business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If the ~~Agent~~ Manager breaches this Agreement by failing to deliver the ~~Net Proceeds~~ aggregate gross sales proceeds less any Transaction Fees to the Company on any Settlement Date for the Shares delivered by the Company, the ~~Agent~~ Manager will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the ~~Agent~~Manager. ~~viii.~~ (ix) At each Applicable ~~Time, Settlement Date,~~ Time and Representation Date (as defined in Section 4(k~~)) and Filing Date (as defined in Section 4(a~~)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) If the Company wishes to issue and sell the Shares pursuant to this Agreement ~~and~~ to the ~~Alternative Equity Distribution Agreements but other than~~ Manager as ~~set forth in Section 3(a) of this Agreement (each, a “Placement”)~~principal, it will ~~notify~~ propose the ~~Agent of the proposed~~ terms of such ~~Placement~~sale to the Manager. If the ~~Agent~~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 ~~Agent~~ Manager and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Manager unless and until the Company and the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Manager. The commitment of the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~Manager. (d) Under no circumstances shall the number and aggregate ~~value~~ gross sales price of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) the ~~Maximum Amount~~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 ~~Agent~~ Manager in ~~writing~~writing in the Placement Notice. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either ~~the Company or the Agent~~ 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. (gf) Notwithstanding any other provision of this ~~Agreement,~~ 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~~Shares that would be sold, and the ~~Agent~~ Manager shall not be obligated to ~~offer or sell any Shares~~sell, ~~(i)~~ during any period in which the Company is, or ~~could~~ would reasonably 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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Equity Distribution Agreement (Apellis Pharmaceuticals, Inc.)

Sale and Delivery of Shares. (a) The Company’s board of directors has delegated to certain officers of the Company, which are listed as authorized representatives of the Company on Schedule 1 hereto (the Authorized Company Representatives), the authority to negotiate the terms and conditions of any such sale of the Shares. (b) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares from time to time~~ through the Agent, ~~acting~~ as sales agent, and the Agent agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, such Shares as agreed upon herein. The Shares may be offered and sold in (1) privately negotiated transactions (if and only if the ~~Shares~~ parties hereto have so agreed in writing), or (2) by any other method or payment permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including sales made directly on the ~~following terms~~New York Stock Exchange or sales made to or through a market maker 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, and either party may withhold its consent thereto in such party’s sole discretion. i. (c) 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 ~~day that (A) is a~~ trading day ~~for the NYSE~~ (other than a day on which the ~~NYSE~~ New York Stock Exchange (the Exchange) is scheduled to close prior to its regular weekday closing time)) (each, (Ba 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 ~~electronic mail~~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 ~~make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate~~ the maximum ~~amount~~ number of ~~the~~ Shares to be sold by the Agent ~~daily as previously agreed to in writing or electronic transmission by the Agent~~ on such Trading Day (in any event not in excess of ~~(i)~~ the ~~amount~~ number available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~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 ~~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) at the time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share so 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 selling 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 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~~ (d) Notwithstanding the foregoing, the Company shall not ~~authorize~~ instruct the ~~issuance and sale of~~Agent to sell, and the Agent shall not be obligated to use its commercially reasonable efforts to sell, any ~~Share~~ Shares (i) at a price lower than the minimum price therefor ~~designated~~ 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~~ board of ~~Directors (the “Board”)~~directors, or a duly authorized committee ~~thereof~~thereof or an Authorized Company Representative, and notified to the Agent in writing. ~~The~~ In addition, the Company or the Agent may, upon notice to the other party hereto by telephone (confirmed promptly by ~~electronic mail~~telecopy or email, which confirmation will be promptly acknowledged by the Company or Agent, as applicable), 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. iv(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 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 the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 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) are not satisfied with respect to the Company or the Common Stock, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. (g) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales~~ Shares sold under this Agreement shall be the actual execution price of the Shares on behalf of the Company pursuant to this Section 3(a), other than (A) (1) by 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 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 agreed sold by the ~~Company and the~~ Agent ~~pursuant to a Terms~~ under this Agreement~~. v.~~ . The compensation payable to the Agent for sales of ~~the~~ Shares ~~with respect to which~~ sold by the Agent ~~acts as sales agent~~ under this Agreement shall be ~~at a mutually agreed rate, not~~ equal to ~~exceed 2.0~~% of the gross sales price of the Shares for amounts of Shares sold by the Agent 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~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi.~~ (h) The Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ following the close of trading on the ~~NYSE~~ Exchange each day in which ~~the~~ Shares are sold by the Agent under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the ~~aggregate~~ gross sales ~~proceeds and~~ prices of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to the 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~~. ~~vii.~~ (i) Settlement for sales of the Shares sold by the Agent pursuant to this ~~Section 3(a)~~ Agreement will occur on the third ~~Business~~ 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 day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Agent’s account, or to the account of the Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (~~“DTC”~~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~~ Company, or its transfer agent (if applicable) ), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If The individuals listed on Schedule 3 to this Agreement and any replacement or additional individuals identified to the Agent ~~breaches~~ in writing by an Authorized Company 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 ~~Agreement~~ Section. (j) Notwithstanding any other provision contained herein, if subsequent to a sale of 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 ~~failing~~ 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 in the manner contemplated in the Disclosure Package, the Prospectus and this Agreement, and (2) the Agent so notifies the Company, then, (W) the Agent shall not be required to deliver the applicable Net Proceeds ~~to the Company~~ on any Settlement Date for such Shares, (X) the ~~Shares~~ Agent shall return to the Company Shares, if any, delivered to it by the ~~Company~~Company for settlement of such sale, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (~~as defined in Section 4(k)~~Y) ~~and Filing Date (as defined in Section 4(a)),~~ the Company shall not be ~~deemed~~ required to ~~have affirmed each representation and warranty contained in this Agreement as if~~ deliver such ~~representation and warranty were made as~~ Shares for settlement of such ~~date, modified as necessary to relate to the Registration Statement~~ sale and ~~the Prospectus as amended as of such date. Any obligation of the Agent to use its commercially reasonable efforts to sell the Shares on behalf of~~ (Z) the Company shall not be ~~subject~~ required to pay the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified Agent any commission in ~~Section 6 of this Agreement~~connection with such sale. (bk) 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to ~~sell Shares~~sell, any solicitation of an offer to ~~buy Shares~~buy, or any sales of Shares or any other equity security of the Company shall only be effected by or through only one of the Agent or an the Alternative ~~Agent~~ Agents 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~~ other Alternative ~~Agents~~ Agent sell Shares on the same day; provided, however, that (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Sales Agency Agreement (Dominion Resources Capital Trust Iv)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares~~ exclusively through the Agent acting as sales agent or directly to the Agent acting as principal from time to ~~time through the Agent, acting as sales agent~~time, and the 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 terms~~Company. i. b) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the 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 has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C)~~ that the Company has satisfied its obligations under Section 6 of this Agreement and that the Company has instructed the Agent to make such sales. 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 such securities for the accounts of such persons in which the Agent is acting for the Company in a capacity other than as Agent under this Agreement. ~~The~~ On any Trading Day, the Company may instruct the Agent by 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 ~~designate~~ be promptly acknowledged by the Agent) as to the maximum ~~amount~~ aggregate dollar value or number of ~~the~~ Shares to be sold by the Agent ~~daily as previously agreed to in writing or electronic transmission by the Agent~~ on such day (in any event not in excess of ~~(i)~~ the ~~amount~~ number available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~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 ~~on a particular day, consistent with its normal trading practices,~~ as sales agent 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) at the time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share so designated by the ~~Company at which such Shares may be sold). ii~~Company. The Company ~~acknowledges~~ and ~~agrees~~ 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 ~~it does~~ 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 ~~under~~ by 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~~ 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 ~~Share~~ Shares pursuant to this Agreement (i) at a price lower than the minimum price therefor ~~designated~~ authorized from time to time, or (ii) in a number in excess of the number or maximum aggregate dollar value of Shares authorized from time to time to be issued and sold under this Agreement, in each case, by the Company’s ~~Board~~ board of ~~Directors (the “Board”)~~directors, or a duly authorized committee thereof, and notified to the Agent in writing. ~~The~~ In addition, the Company may, upon notice to the Agent, suspend the offering of the Shares or the Agent may, upon notice to the ~~other party hereto by telephone (confirmed promptly by electronic mail)~~Company, suspend the offering of the Shares with respect to which the 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 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 shall be addressed to each of the individuals from the Agent set forth on Schedule 1 hereto, which confirmation will be promptly acknowledged). ~~iv.~~ d) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Agent ~~pursuant~~ on Nasdaq or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the 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~~ equal to ~~exceed 2.0~~up to 3.0% of the gross sales price of the Shares for amounts of 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~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi. The~~ e) If acting as a sales agent hereunder, the Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company promptly following the close of trading on ~~the NYSE~~ Nasdaq, each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to ~~the~~ such Agent with respect to such sales~~. Such compensation~~ . f) Under no circumstances shall be 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, (ii) available for issuance under the Prospectus and ~~invoiced in periodic statements~~ 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 ~~Company, with payment to be made by the Company promptly after its receipt thereof~~Agent in writing. ~~vii.~~ g) Settlement for sales of ~~the~~ Shares pursuant to this Section ~~3(a)~~ 2 will occur on the ~~third Business~~ second business day that is also a 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 day, 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 ~~for~~ from the sale of such Shares. Settlement for all ~~such~~ Shares shall be effected by ~~free~~ book-entry delivery of ~~the~~ Shares to the Agent’s account at The Depository Trust Company ~~(“DTC”) in return for~~ against payments by the Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to ~~the~~ an account designated by the Company. If the Company ~~or its transfer agent (if applicable)~~ shall default on its obligation to deliver ~~the~~ Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. ~~viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)~~h) ~~and Filing Date (as defined in Section 4(a))~~Notwithstanding any other provision of this Agreement, 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 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 ~~if such representation and warranty were made as of such date~~the case may be, ~~modified as necessary to relate to~~ is filed with the ~~Registration Statement and the Prospectus as amended as of such date.~~ Commission. i) Any obligation of the 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 herein, to the performance by the Company of 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 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: At the Market Equity Offering Sales Agreement (HilleVax, Inc.)

Sale and Delivery of Shares. (a) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell ~~Shares~~ exclusively through an Agent (the “Designated Agent”) acting as sales agent or directly to an Agent acting as principal from time to ~~time through the Agent, acting as sales agent~~time, and the 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 terms~~Company. i. (b) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the 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 has instructed the Agent by telephone (confirmed promptly by electronic mail) to make such sales and (C)~~ that the Company has satisfied its obligations under Section 6 of this Agreement and that the Company has instructed the Designated Agent to make such sales. 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 such securities for the accounts of such persons in which such Designated Agent is acting for the Company in a capacity other than as Designated Agent under this Agreement. ~~The~~ On any Trading Day, the Company may instruct the Designated Agent by 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 ~~designate~~ be promptly acknowledged by the Designated Agent) as to the maximum ~~amount~~ aggregate dollar value or number of ~~the~~ Shares to be sold by the Designated Agent ~~daily as previously agreed to in writing or electronic transmission by the Agent~~ on such day (in any event not in excess of ~~(i)~~ the ~~amount~~ number available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~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 ~~on a particular day, consistent with its normal trading practices,~~ as sales agent 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) at the time of sale of such Shares (but in no event shall such gross sales price be less than the minimum price per Share so designated by the Company ~~at which such Shares may be sold). ii~~and in the manner and on the terms so designated by the Company. The Company ~~acknowledges~~ and ~~agrees~~ the Designated Agent each acknowledge and agree that (Ai) there can be no assurance that the Designated Agent will be successful in selling the Shares, (Bii) the Designated Agent will incur no liability or obligation to the Company or any other person or entity if ~~it does~~ 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 ~~under~~ by this Agreement, and (Ciii) the Designated Agent shall be under no obligation to purchase Shares on a principal basis ~~pursuant to this Agreement,~~ except as otherwise specifically agreed by each of the Designated Agent and the ~~Company~~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. ~~iii. The~~ (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 ~~Share~~ Shares pursuant to this Agreement (i) at a price lower than the minimum price therefor ~~designated~~ authorized from time to time, or (ii) in a number in excess of the 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~~ board of ~~Directors (the “Board”)~~directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing. ~~The~~ In addition, the Company may, upon notice to the Designated Agent, suspend the offering of the Shares or the Designated Agent may, upon notice to the ~~other party hereto by telephone (confirmed promptly by electronic mail)~~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 may be given by telephone (confirmed promptly by email and shall be addressed to each of the individuals from the Agents set forth on Schedule 1, which confirmation will be promptly acknowledged). ~~iv.~~ (d) The ~~Agent hereby covenants and agrees not to make~~ gross sales price of any ~~sales of the~~ Shares ~~on behalf of the Company~~ sold pursuant to this ~~Section 3(a), other than (A) (1)~~ Agreement by ~~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~~ Designated Agent acting 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 ~~agreed~~ the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the ~~Company and the~~ Designated Agent ~~pursuant~~ on Nasdaq or otherwise, at prices relating to ~~a Terms Agreement. v.~~ prevailing market prices or at negotiated prices. The compensation payable to the Designated Agent for sales of ~~the~~ Shares with respect to which the Designated Agent acts as sales agent ~~under this Agreement~~ shall be ~~at a mutually agreed rate, not~~ equal to ~~exceed 2.0~~3.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this ~~Section 3(a) and payable as described in the succeeding subsection (vi) below~~Agreement. 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~~ an Agent, acting as ~~principal~~ 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 ~~on the Agent~~ by any ~~governmental~~ governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). Such Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. ~~vi. The~~ (e) If acting as a sales agent hereunder, the Designated Agent shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company promptly following the close of trading on ~~the NYSE~~ Nasdaq, each day in which ~~the~~ Shares are sold under this ~~Section 3(a)~~ Agreement setting forth the number of ~~the~~ Shares sold on such day, the aggregate gross sales proceeds ~~and~~ of the Shares, the Net Proceeds to the ~~Company,~~ Company and the compensation payable by the Company to ~~the~~ such Designated Agent with respect to such sales~~. Such compensation~~ . (f) Under no circumstances shall be 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 ~~invoiced in periodic statements~~ 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 ~~Agent~~ Company’s board of directors, or a duly authorized committee thereof, and notified to the ~~Company~~Designated Agent in writing. In addition, under no circumstances shall any Shares with ~~payment~~ respect to which the Designated Agent acts as sales agent be ~~made~~ sold at a price lower than the minimum price therefor authorized from time to time by the ~~Company promptly after its receipt~~ Company’s board of directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing. ~~vii.~~ (g) Settlement for sales of ~~the~~ Shares pursuant to this Section ~~3(a)~~ 2 will occur on the ~~third Business~~ second business day that is also a 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 day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Designated Agent for settlement on such date shall be ~~issued and~~ delivered by the Company to the Designated Agent against payment of the Net Proceeds ~~for~~ from the sale of such Shares. Settlement for all ~~such~~ Shares shall be effected by ~~free~~ book-entry delivery of ~~the~~ Shares to the Designated Agent’s account at The Depository Trust Company ~~(“DTC”) in return for~~ against payments by the Designated Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to ~~the~~ an account designated by the Company. If the Company ~~or its transfer agent (if applicable)~~ shall default on its obligation to deliver ~~the~~ Shares on any Settlement Date, the Company shall (Ai) indemnify and hold the Designated Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (Bii) pay the Designated Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. ~~viii. At each Applicable Time, Settlement Date, Representation Date~~ (~~as defined in Section 4(k)~~h) ~~and Filing Date (as defined in Section 4(a))~~Notwithstanding any other provision of this Agreement, 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 any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of the Agreement and as such may be amended from time to 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 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 2(h), 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 ~~if such representation and warranty were made as of such date~~the case may be, ~~modified as necessary to relate to~~ is filed with the ~~Registration Statement and the Prospectus as amended as of such date.~~ Commission. (i) Any obligation of the 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 herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (bj) 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 Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to ~~sell Shares~~sell, any solicitation of an offer to ~~buy Shares~~buy, or any sales of Shares pursuant to this Agreement shall only be effected by or through an Agent, and only ~~one of the Agent or an Alternative Agent~~ a single Agent, on any single given ~~day~~date, ~~but~~ and in no event by shall the Company request that more than ~~one, and the Company shall in no event request that the~~ one Agent ~~and any of the Alternative Agents~~ sell ~~Shares~~ securities on the same day; ~~provided, however,~~ provided however that (ai) the foregoing limitation shall not apply to (iA) ~~the exercise~~ exercise, vesting or settlement of any option, restricted stock unit, warrant, right or any conversion privilege set forth in the ~~instrument~~ instruction governing such ~~security or~~ securities, (iiB) sales solely to ~~employees~~ 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 ~~persons~~person, (C) grants of options, shares of Common Stock and other awards to purchase or receive shares of Common Stock under the Company’s stock option, stock bonus or other stock plans or arrangements that are in effect or (D) issuances of any shares of Common Stock related to the filing by the Company of 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 (bii) such limitation shall not apply (Y) 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, 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. (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, (iZ) during ~~any~~ a 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~~ has notified 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 operations (each, an “Earnings Announcement”) through and including the time Agents 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, it will not 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 Common Stock 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 (B1) ~~this Section 3(h~~no Company instruction to sell Shares is pending or (2) ~~shall in no way affect or limit the operation of the provisions of clauses (i) and (ii) of Section 3(g), which shall have independent application~~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) 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 the ~~Agent~~Manager, acting as sales agent, and the ~~Agent~~ Manager agrees to use its 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 agreed to by the Company and the ~~Agent~~ 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 has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the ~~Agent~~ Manager daily ~~as previously agreed to in writing or electronic transmission by the Agent~~ (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the currently effective Registration ~~Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements~~Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the ~~Agent~~ Manager shall use its ~~commercially~~ reasonable efforts to sell on a particular ~~day, consistent with its normal trading practices,~~ 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 ~~Agent~~ Manager under this Section 3(a) on the Trading Market at the time of 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)~~Shares. (ii. ) The Company acknowledges and agrees that (A) there can be no assurance that the ~~Agent~~ Manager will be successful in selling the Shares, (B) the ~~Agent~~ Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the ~~Agent~~ Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the ~~Agent~~ Manager and the ~~Company~~Company pursuant to a Terms Agreement. (iii. ) The Company shall not authorize the issuance and sale of, and the ~~Agent~~ 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 ~~Agent~~ Manager in writing. The Company or the ~~Agent~~ Manager may, upon notice to the other party 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. (iv. ) The ~~Agent hereby covenants and agrees not~~ Manager may sell Shares by any method permitted by law deemed to ~~make any sales~~ be an “at the market” offering as defined in Rule 415 of the ~~Shares~~ Securities Act, including without limitation sales made directly on ~~behalf of~~ the ~~Company pursuant to this Section 3(a),~~ Trading Market on any other ~~than (A) (1) by means of ordinary brokers’ transactions between members of~~ existing trading market for the ~~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)~~ Common Stock or 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 . The Manager may also sell Shares ~~on behalf of the Company~~ in ~~its capacity as agent of the Company as shall be agreed by the Company and the Agent pursuant to a Terms Agreement~~privately negotiated transactions. v. (v) The compensation to the ~~Agent~~ Manager for sales of the Shares with respect to which the ~~Agent~~ 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 the Shares~~ per Share 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~~ Manager acts as principal, in which case the Company may sell Shares to the ~~Agent~~ 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 ~~on the Agent~~ by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). (vi. ) The ~~Agent~~ Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company ~~promptly~~ following the close of trading on the ~~NYSE~~ Trading Market 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 to the Company, and the compensation payable by the Company to the ~~Agent~~ Manager 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~~. (vii. ) Settlement for sales of the Shares pursuant to this Section 3(a) will occur at 10:00 a.m. (Eastern Time), or at such time as the Company and the Manager may mutually agree, on the third ~~Business Day~~ business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the ~~Agent~~Manager’s account at The Depository Trust Company (“DTC”) via the DWAC system, in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If the ~~Agent~~ Manager breaches this Agreement by failing to deliver the Net Proceeds ~~to the Company~~ on any Settlement Date for the Shares delivered by the Company, the ~~Agent~~ Manager will pay the Company interest based on the effective overnight federal funds ~~rate on such unpaid amount less any compensation due to the Agent~~rate. (viii. ) At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined below in Section ~~4(a)~~4(w), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 ~~Agent~~ Manager to use its ~~commercially~~ reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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 ~~Agent~~ Manager and the Company will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 ~~Agent~~ Manager unless and until the Company and the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the ~~Agent~~Manager. The commitment of the ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~ 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 ~~Agent~~Manager. (d) Under no circumstances shall the number and aggregate ~~value~~ amount of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements~~ Agreement and any Terms Agreement exceed (i) the ~~Maximum Amount~~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 ~~Agent~~ Manager in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either ~~the Company or the Agent~~ 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. (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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Continuous Offering Program Agreement (Oculus Innovative Sciences, Inc.)

Sale and Delivery of Shares. (a) (i) Subject to the terms and conditions ~~and in reliance upon the representations and warranties herein~~ set ~~forth~~forth herein, the Company agrees to issue and sell Shares through any applicable Agent acting as sales agent or directly to the applicable Agents acting as principal from time to time. Sales of the Shares, if any, through an Agent acting as sales agent or directly to an Agent acting as principal will be made by means of ordinary brokers’ transactions on the 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 ~~through~~ 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 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 ~~sales agent~~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 ~~agrees~~ on an agented basis on any day (each, a “Trading Day”) on which the Company has (i) instructed such Agent to ~~use its reasonable efforts~~ 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 ~~sell~~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 ~~agent for~~ on behalf of the Company, instruct the Shares on the following terms. i. The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Agent on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company has instructed the applicable Agent by telephone (confirmed promptly by ~~electronic mail~~facsimile transmission or email, which confirmation will be promptly acknowledged by such Agent) as to ~~make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate~~ the maximum ~~amount~~ number and the maximum aggregate gross sales price of ~~the~~ Shares to be sold by the Agent daily as previously agreed to in writing or electronic transmission by the Agent (in any event not in excess of (i) the amount available for issuance under the Prospectus and the currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) on such Trading Day and the minimum price per Share at which such Shares may be sold~~. Subject~~ , or (ii) in the case of a Forward, propose to the ~~terms~~ applicable Agent and ~~conditions hereof~~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 ~~Agent shall use its commercially reasonable efforts~~ number of Forward Hedge Shares to ~~sell on a particular day, consistent with its normal trading practices, all of the Shares designated for the sale~~ be sold by the ~~Company on such day. The~~ 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 ~~sold under this Section 3(a) shall~~ to be ~~the market price for shares of the Company’s Common Stock~~ sold by the relevant Agent ~~under this Section 3(a) at~~ over the ~~time of sale of such Shares~~ Forward Hedge Selling Period (~~but in no event shall such gross sales price be less than~~ the “Aggregate Maximum Forward Hedge Amount”), the minimum price per ~~Share designated by the Company~~ share at which ~~such~~ Forward Hedge Shares may be sold, the commission the Agent is to receive for selling such Forward Hedge Shares (the “Forward Seller Commission”)~~. ii~~, 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. ~~The Company acknowledges~~ Such Agent and/or such Forward Purchaser shall promptly, and ~~agrees that~~ in any event prior to the opening of trading on the Trading Day following the Trading Day on which such Forward Instruction Notice was delivered, choose to (A) ~~there can be no assurance that~~ accept the ~~Agent will be successful~~ terms proposed in ~~selling the Shares~~such Forward Instruction Notice, (B) decline to participate in the ~~Agent will incur no liability~~ proposed Forward 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 under this Agreement, and (C) propose amended terms upon which to participate in 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 any reason and at any timeproposed Forward; provided, however, that in the case of clause (C), the Company may accept or reject such ~~suspension~~ amended terms in its sole discretion no later than on the 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 ~~termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder~~ its amended terms and in any event prior to the ~~giving~~ opening of ~~such notice. iv. The Agent hereby covenants and agrees not to make any sales of~~ trading on the ~~Shares on behalf of the Company pursuant to this Section 3(a~~immediately following Trading Day), other than (A) (1) by 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 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 agreed by the Company and the ~~Agent pursuant to a Terms Agreement. v. The compensation to the Agent for sales of the Shares with respect to which the Agent acts as sales agent under this Agreement~~ Forward Purchaser shall be at a mutually agreed rate, not to exceed 2.0% of the gross sales price of 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 for such Shares (the “Net Proceeds”). vi. The Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company promptly following the close of trading on the NYSE 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 to the Company, and the compensation payable by the Company to the 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. vii. Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third Business Day following the date on which such sales are made (each such day, 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 for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Settlement Date for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement 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 Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) 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,~~ Confirmation substantially in ~~substantially~~ the form of ~~Annex I hereto, setting forth the terms of~~ Exhibit B hereto and consistent with 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 controlForward Instruction Notice. (c) Each sale of the Shares to the Agent 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 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 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 (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 Agent. (d) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement 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, 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. (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 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) of Section 3(g), which shall have independent application.

Appears in 1 contract

Samples: Atm Equity Offering Sales Agreement (Americold Realty Trust)

Sale and Delivery of Shares. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but 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 the ~~Agent~~Manager, ~~acting~~ as sales agent, as and when it provides instructions, in its discretion, for the sale of Shares, and the ~~Agent~~ Manager 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 to upon by the Company and the ~~Agent~~ Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule B hereto (the “Authorized Company Representatives”), has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 ~~of this Agreement~~hereof. The Company will designate the maximum amount of the Shares to be sold by the ~~Agent~~ Manager daily as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the ~~Prospectus and the~~ currently effective Registration Statement less (ii) any amounts already issued and sold pursuant to this Agreement and the Alternative Equity Distribution Agreements) 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 on a particular day, consistent with its normal trading practices, all or in an amount in excess of the amount of 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) at the time of 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 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 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 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 authorized from time to time to be issued and sold under this Agreement by the Company’s Board of ~~Directors (the “Board”)~~Directors, or a duly authorized committee thereof, and notified to the ~~Agent~~ Manager by electronic mail substantially in ~~writing~~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. ~~The~~ 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 time of sale, at prices related to prevailing market prices or at negotiated prices. Subject to the terms and conditions of this Section 3(a), 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 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 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 means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At the Market Offerings”). (ii) Notwithstanding the foregoing, the Company, through any of the Authorized Company Representatives, may instruct the 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 Agent~~ Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for ~~any reason and at any time~~a specified period (a “Suspension Period”); provided, however, that such ~~suspension or termination~~ 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~~notice and provided, further, that there shall be no obligations under Sections 4(n), 4(o), 4(p) and 4(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. ~~iv.~~ (iii) The ~~Agent~~ Manager 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 ~~ordinary brokers’ transactions between members of~~ At the 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 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 ~~Agent pursuant to a Terms Agreement~~Manager. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company, 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 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 for such Shares (the “Net Proceeds”). ~~vi.~~ (v) The ~~Agent~~ Manager shall provide written confirmation ~~(which may be by facsimile or electronic mail)~~ to the Company ~~promptly~~ as soon as is reasonably practicable following the close of trading on the NYSE each day in which the Shares are sold ~~under~~ pursuant to this Section 3(a) setting forth the ~~number~~ amount of the Shares sold on such day, ~~the aggregate gross sales proceeds and~~ the Net Proceeds to the Company, and the compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the third ~~Business Day~~ business day following the date on which such sales are made (each such ~~day~~date, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the ~~Agent~~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 (“~~DTC~~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~~ Company, or its transfer agent (if applicable) ), shall default on upon its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If The Authorized Company Representatives shall be the ~~Agent breaches this Agreement by failing to deliver~~ contact persons for the ~~Net Proceeds~~ Company for all matters related to the ~~Company on any~~ 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 for the Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent. viii. At each Applicable Time, Settlement Date, and Representation Date (as defined in Section ~~4(k)~~4(n) ~~and Filing Date (as defined in Section 4(a))~~hereof, the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement 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~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 ~~of this Agreement~~hereof. (bi) 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~~ hereof (each, a “Placement”), it will notify the ~~Agent~~ Manager of the proposed terms of such Placement. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent~~ Company and the ~~Company~~ Manager will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 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 any Terms Agreement, the terms of such Terms Agreement will control. (c) Each sale of the Shares to the Agent 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 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 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 (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 Agent. (di) Under no circumstances shall the aggregate ~~value~~ gross sales proceeds of the Shares sold pursuant to this ~~Agreement, the Alternative Equity Distribution Agreements and any Terms~~ Agreement exceed the lesser of (iA) the ~~Maximum Amount,~~ amount set forth in Section 1 hereof and (iiB) the ~~number of shares of the Common Stock~~ amount available for ~~issuance~~ offer and sale under the currently effective Registration Statement ~~or (iii)~~ nor shall the ~~number and~~ aggregate amount of Shares sold pursuant to this Agreement exceed the amount of Shares authorized ~~from time to time~~ to be issued and sold from time to time under this Agreement by the ~~Board~~Company’s Board of Directors, or a duly authorized committee thereof, and notified to the ~~Agent~~ Manager in writing. (e) Except pursuant to a reoffer of Shares as described in Section 3(c) hereof, the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement or an Alternative Equity Distribution Agreement. (f) If either ~~the Company or the Agent~~ party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other ~~party~~ party, and sales of the Shares under this ~~Agreement and any Terms~~ Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. (gd) ~~Notwithstanding any other provision~~ 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 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~~ Manager, sales effected pursuant to this Agreement may not be ~~obligated to offer or sell any Shares, (i) during any period in which~~ requested by the Company ~~is, or could~~ and need not be ~~deemed to be, in possession of material non-public information, or (ii)~~ made by the Manager 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 operations (each, an “Earnings Announcement”) through and including the time that ~~is 24 hours~~ begins after the ~~time that the Company files (a “Filing Time”)~~ filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K ~~that includes consolidated financial statements~~ as of and within the period required by the Exchange Act (each such date, a “Filing Date”) and ends, for ~~the same period or~~ 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 ~~case may~~ end of the quarter in which the applicable Filing Date occurs. Notwithstanding the foregoing, without the prior written consent of each of the Company and the Manager, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is or could be deemed to be, ~~covered by such Earnings Announcement~~in possession of material non-public information. (hf) ~~If the~~ The Company ~~wishes to offer, sell or deliver Shares at any time during the period from~~ acknowledges and ~~including an Announcement Date through and including the time~~ agrees that ~~is 24 hours after the corresponding Filing Time, the Company shall~~ (i) ~~prepare and deliver~~ 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 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 (Company or any other person or entity if it does not sell Shares for any reason other than ~~any earnings projections~~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, ~~similar forward-looking data~~ and ~~officers’ quotations~~(iii) ~~(each, an “Earnings 8-K”)~~the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement unless a Terms Agreement, in form and substance ~~reasonably~~ mutually satisfactory to the ~~Agent~~Company and Manager, 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~~ executed by the Company and the Manager. (org) The Company agrees that any offer to sell, ~~if later~~any solicitation of an offer to buy, ~~the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released)~~ or any sales of Shares shall only be effected by or through ~~and including the time that is 24 hours after the Filing Time~~ only one of the ~~relevant Quarterly Report~~ Manager or the Alternative Manager on ~~Form 10-Q or Annual Report on Form 10-K~~any single given day, ~~as the case may be. For purposes of clarity~~but in no event by both, ~~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~~ event request that the ~~operation of~~ Manager and the ~~provisions of clauses (i) and (ii) of Section 3(g), which shall have independent application~~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) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, and 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~~ through or to ~~time through~~ the ~~Agent~~Manager, ~~acting~~ as sales ~~agent~~agent and/or principal, as and when it provides instructions, in its discretion, for the sale of the Shares, and the ~~Agent~~ 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. (i) The Shares are to be sold by the Manager on a daily basis or otherwise as shall be mutually agreed to upon by the Company and the ~~Agent~~ Manager on any ~~day that (A) is a~~ trading day for ~~the NYSE~~ Nasdaq (other than a day on which ~~the NYSE~~ Nasdaq is scheduled to close prior to its regular weekday closing time) (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, as such Schedule B may be amended from time to time (the “Authorized Company Representatives”), has instructed the ~~Agent~~ Manager by telephone (confirmed promptly by electronic ~~mail~~mail 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 and (CB) the Company has satisfied its obligations under ~~Section~~ Sections 4, 5 and 6 ~~of this Agreement~~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 substantially in the form attached hereto as Exhibit 3(a)(i) the maximum amount of the Shares to be sold by the ~~Agent~~ Manager daily or over a specific trading period as ~~previously~~ agreed to ~~in writing or electronic transmission~~ by the ~~Agent~~ Manager (in any event not in excess of ~~(i)~~ the amount available for issuance under the Prospectus and the ~~currently effective~~ Registration Statement ~~less~~ (iiincluding any limit set forth in General Instruction I.B.6 thereof, if applicable) ~~any amounts already~~ or in an 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 ~~pursuant to~~ under this Agreement ~~and~~ or below any minimum price below which sales of the ~~Alternative Equity Distribution Agreements~~Shares may not be effected) and any other limitations specified by the ~~minimum price per Share at~~ 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 ~~such Shares may be sold~~the Manager is acting for the Company in a capacity other than as Manager under this Agreement. Subject to the terms and conditions ~~hereof~~of this Section 3(a), the ~~Agent~~ Manager may sell the 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, to or through a market maker at market prices prevailing at the time of sale, at prices related to prevailing market prices or 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 ~~on a particular day, consistent with its normal trading practices,~~ all of the Shares ~~designated for~~ designated; provided, however, that the ~~sale by~~ Manager shall have no obligation to offer or sell any Shares, and 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) at the time of 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 the Manager shall have no such obligation, in the event that an offer or sale of the Shares on behalf of the Company may, 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 means of ordinary brokers’ transactions between members of Nasdaq that qualify for delivery of a Prospectus to Nasdaq in accordance with Rule 153 under the Act. (Aii) ~~there can~~ 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 ~~no assurance that~~ effected at or above the ~~Agent will be successful~~ price designated by the Company in ~~selling the Shares~~any such instruction. In addition, ~~(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 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 Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for ~~any reason and at any time~~a specified period (a “Suspension Period”); provided, however, that such ~~suspension or termination~~ 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~~notice and provided, further, that there shall be no obligations under Sections 4(m), 4(n), 4(p) and 4(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. ~~iv.~~ (iii) The ~~Agent~~ Manager 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 ~~ordinary brokers’ transactions between members of~~ At the 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 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 ~~Agent pursuant to a Terms Agreement~~Manager. v. (iv) The compensation to the ~~Agent~~ Manager, as an agent of the Company, 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~~3.0% of the gross sales price of 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 for such Shares (the “Net Proceeds”). ~~vi. The Agent~~ (v) If acting as sales agent hereunder, the Manager shall provide written confirmation to the Company (which may be by ~~facsimile or~~ electronic mail) ~~to the Company promptly~~ as soon as is reasonably practicable following the close of trading on ~~the NYSE~~ Nasdaq each day in which the Shares are sold ~~under~~ pursuant to this Section 3(a) setting forth (i) the number of ~~the~~ Shares sold on such day, ~~the aggregate gross sales proceeds and~~ (ii) the Net Proceeds to the Company, and (iii) the compensation payable by the Company to the ~~Agent~~ Manager 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~~. ~~vii.~~ (vi) Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the ~~third Business Day~~ second business day that is also a trading day on Nasdaq following the date on which such sales are made (each such ~~day~~date, a “Settlement Date”). On each Settlement Date, the Shares sold through the ~~Agent~~ Manager for settlement on such date shall be issued and delivered by the Company to the ~~Agent~~ Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the ~~Agent~~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 (“DTC”) 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~~ Company, or its transfer agent (if applicable) ), shall default on 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 ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If The Authorized Company Representatives shall be the ~~Agent breaches this Agreement by failing to deliver~~ contact persons for the ~~Net Proceeds~~ Company for all matters related to the ~~Company on any Settlement Date for~~ settlement of the transfer of the Shares ~~delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Agent~~through DTC for purposes of this Section 3(a)(vi). ~~viii.~~ (vii) At each ~~Applicable Time, Settlement~~ Representation Date~~, Representation Date (as defined in Section 4(k)) and Filing Date (as defined in Section 4(a))~~, the Company shall be deemed to have affirmed each representation and warranty contained in this ~~Agreement 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~~Agreement. Any obligation of the ~~Agent~~ Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 ~~of this Agreement~~hereof. (b) 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) hereof, it will notify the Manager of ~~this Agreement~~ the proposed terms of such issuance and sale (each, a “Placement”)~~, it will notify the Agent of the proposed terms of such Placement~~. If the ~~Agent~~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~~ Company, wishes to accept amended terms, the ~~Agent~~ Company and the ~~Company~~ Manager will enter into a Terms ~~Agreement, in substantially the form of Annex I hereto,~~ 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 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 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 Manager 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 ~~Agent~~ Manager shall be made in accordance with the terms of this Agreement ~~and~~or, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Agent. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Agent. The ~~commitment of the Agent~~ Manager’s commitment, if any, to purchase Shares from the ~~Shares pursuant to any Terms Agreement~~ 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. ~~Each~~ At the time of each Terms ~~Agreement~~ Agreement, the Manager shall specify the ~~number of~~ requirements, if any, for the ~~Shares~~ officers’ certificates, legal opinions and comfort letters pursuant to ~~be purchased by the Agent pursuant thereto~~Sections 4(m), ~~the price to be paid to the Company for such Shares~~4(n), 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 (each such time and date being referred to herein as a “Time of Delivery”4(p) 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. (d4(q) Under no circumstances shall the aggregate value of the Shares 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 duly authorized committee thereof, and notified to the Agent in writinghereof. (e) ~~Except pursuant~~ Subject to ~~a reoffer of Shares~~ the limitations set forth herein and as ~~described in Section 3(c) hereof,~~ may be mutually agreed upon by the Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one 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~~Manager, ~~however, that (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii)~~ sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (b) such limitation shall not apply on any day during which no sales are made effected pursuant to this Agreement ~~or an Alternative Equity Distribution Agreement. (f) If either~~ may not be requested by 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, 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. (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 need not be ~~obligated to offer or sell any Shares,~~ made by the Manager (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~~ from and including the ~~period commencing on the seventh Business Day prior to the date (each, an “Announcement Date”)~~ day 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~~ applicable Bring-Down Delivery Date of the Company ~~files~~ referenced in Section 4(q) below, or (~~a “Filing Time”~~ii) ~~a Quarterly Report on Form 10-Q~~ during any other period in which the Company is, 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~~ could be deemed to be, ~~covered by such Earnings Announcement~~in possession of material non-public information. (hf) ~~If the~~ The Company ~~wishes to offer, sell or deliver Shares at any time during the period from~~ acknowledges and ~~including an Announcement Date through and including the time~~ agrees that ~~is 24 hours after the corresponding Filing Time, the Company shall~~ (i) ~~prepare and deliver to~~ there can be no assurance that the ~~Agent (with a copy to counsel to~~ Manager will be successful in selling 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)Shares, (ii) ~~provide~~ the ~~Agent~~ 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 ~~officers’ certificate~~terms of this Agreement, ~~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)~~ Manager 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 under any obligation to purchase Shares 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 a principal basis pursuant to this ~~Section 3(h) shall not relieve~~ Agreement except as otherwise specifically agreed by the Manager and the Company ~~from any of its obligations under this Agreement with respect~~ pursuant 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) of Section 3(g), which shall have independent applicationa Terms Agreement.

Appears in 1 contract

Samples: Equity Distribution Agreement (Enveric Biosciences, Inc.)

Common use of Sale and Delivery of Shares Clause in Contracts