Sale and Delivery of the Shares. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, as sales agent, or directly to the Manager, as principal, as follows: (a) The Company may submit to the Manager its instruction to sell Shares on any trading day on the NYSE (a “Trading Day”) through placement instructions substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the Manager, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Manager. The Company shall have the right to amend at any time and from time to time any such prior instruction provided that the Manager is given reasonable notice of such amendment. (b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale. (c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension. (d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. (e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute 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. (f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default. (g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company to the Manager with respect to such sales. (h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares 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 5 of this Agreement. (i) If the Company wishes to issue and sell the Shares other than as set forth in Section 3 of this Agreement (each, a “Placement”), it may notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. (j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (k) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date and place of delivery of and payment for such Shares. (l) Subject to the limitations set forth herein and as may be mutually agreed upon by the parties hereto, sales pursuant to this Agreement and any Terms Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins 24 hours after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act and ends, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information. (m) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 and notified to the Manager in writing. (n) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but in no event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) the foregoing limitation shall not apply to (A) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, 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.
Appears in 2 contracts
Samples: Distribution Agency Agreement (Camden Property Trust), Distribution Agency Agreement (Camden Property Trust)
Sale and Delivery of the Shares. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, acting as sales agent, or directly to the Manager, Manager acting as principal, as follows:
(a) The Company may submit to the Manager its instruction orders (including any price, time or size limits or other customary parameters and conditions) to sell Shares on any trading day on Trading Day (as defined below). If the NYSE (Manager agrees to the terms of such proposed transaction or if the Company and the Manager mutually agree to modified terms for such proposed transaction, then the Company shall promptly send to the Manager by the means set forth under Section 10 a “Trading Day”) through placement instructions Transaction Notice substantially in the form attached hereto as of Schedule D. Instructions will be submitted by D hereto, confirming the Company and received by the Manager, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Manageragreed terms of such proposed transaction. The Company shall have the right to amend at any time and from time to time any such prior instruction provided that If the Manager is given reasonable notice of wishes such amendment.
(b) Subject proposed transaction to become a binding agreement between it and the terms and conditions hereofCompany, the Manager shall use promptly indicate its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges acceptance thereof by countersigning and agrees that (i) there can be no assurance that the Manager will be successful in selling Shares, (ii) the Manager will incur no liability or obligation returning such Transaction Notice 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 means set forth under Section 10 hereof or by sending an email confirming acceptance of such Shares as required under this Agreement and Transaction Notice (iii) the Manager each, a “Time of Acceptance”). The terms reflected in a Transaction Notice shall be under no obligation to purchase Shares become binding on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, only if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed accepted by the parties in Manager. Each Transaction Notice shall specify, among other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In additionthings, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.following:
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute 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.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of NASDAQ (as defined below) Trading Day(s) on which the Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company to the Manager with respect subject to such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares transaction are delivered intended to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares 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 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 3 of this Agreement sold (each, a “PlacementPurchase Date”);
(ii) the maximum number of Shares that the Company intends to sell on, it may notify or over the Manager course of, such Purchase Date(s); provided that the number of Shares sold on each such Purchase Date shall be no more than 25% of the proposed terms average daily trading volume in the Common Stock for the 30 Trading Days preceding the date of such Placement. If delivery of the Manager, acting Transaction Notice or as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until otherwise agreed between the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.Manager; and
(kiii) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreementlowest price, which will provide for the sale of such Shares toif any, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date and place of delivery of and payment for such Shares.
(l) Subject to the limitations set forth herein and as may be mutually agreed upon by the parties hereto, sales pursuant to this Agreement and any Terms Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins 24 hours after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act and ends, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, 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 at which the Company is, or could be deemed is willing to be, in possession of material non-public information.
(m) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 and notified to the Manager in writing.
(n) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but in no event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) the foregoing limitation shall not apply to (A) exercise of any option, warrant, right each such Purchase Date or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, 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 formula pursuant to this Agreementwhich such lowest price shall be determined (each, a “Floor Price”).
Appears in 2 contracts
Samples: Distribution Agency Agreement (Firstmerit Corp /Oh/), Distribution Agency Agreement (Firstmerit Corp /Oh/)
Sale and Delivery of the Shares. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, acting as sales agent, or directly to the Manager, Manager acting as principal, as follows:
(a) The Company may submit to the Manager its instruction orders (including any price, time or size limits or other customary parameters and conditions) to sell Shares on any trading day on the NYSE Trading Day (a “Trading Day”as defined herein) through placement instructions substantially in the form attached hereto as Schedule D. Instructions Orders will be submitted by the Company and received by the Manager, initially by an the authorized officer officers and person persons listed in Schedule E, or and any substitute or additional officer officers and person persons as designated by the Company and notified in writing to the Manager. The Company shall have the right to amend at any time and from time to time any such prior instruction order provided that the Manager is given reasonable notice of such amendment. As used herein, “Trading Day” shall mean any trading day on the NYSE.
(b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to execute any Company order submitted to it hereunder to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (iA) there can be no assurance that the Manager will be successful in selling the Shares, (iiB) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement and (iiiC) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) not authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shareswriting. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (iA) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (iiB) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Agreement, other than (1) by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act and (2) 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 Manager in a separate terms agreement upon no less than three business days notice to the Manager.
(e) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(ef) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5to exceed 2.00% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager Manger as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute 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 transactionsTime.
(fg) Settlement for sales of the Shares pursuant to this Agreement will occur on the second third Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 Company, or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (iA) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (iiB) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(gh) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (iA) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (iiB) the commission payable by the Company to the Manager with respect to such sales.
(hi) At each Applicable Time, on each Settlement Date, Date and at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms AgreementDate, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager 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 5 of this Agreement.
(ij) If the Company wishes to issue and sell the Shares other than as set forth in Section 3 of this Agreement (each, a “Placement”), it may notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(jk) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(kl) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date and place of delivery of and payment for such Shares.
(lm) Subject to the limitations set forth herein and as may be mutually agreed upon by the parties heretoCompany and the Manager, sales pursuant to this Agreement and any Terms Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins 24 hours after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act and ends, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information.
(mn) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 and notified to the Manager in writing.
(no) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but in no event more than one, and the Company shall in no event request that the Manager or either Alternative Manager sell Shares on any day that any Alternative Manager is also selling Sharesthe same day; provided, however, that (ia) the foregoing limitation shall not apply to (Ai) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (Bii) sales solely to employees or security holders of the Company or the its Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and (iib) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement.
Appears in 2 contracts
Samples: Distribution Agreement (Camden Property Trust), Distribution Agency Agreement (Camden Property Trust)
Sale and Delivery of the Shares. (a) On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, acting as sales agent, or directly to the Manager, as principal, as follows:
(ai) The Company may submit to the Manager its instruction orders (including any price, time or size limits or other customary parameters and conditions) to sell Shares on any trading day on Trading Day (as defined herein) in a form and manner as mutually agreed to by the NYSE (a “Trading Day”) through placement instructions substantially in Company and the form attached hereto as Schedule D. Instructions Manager. Orders will be submitted by the Company and received by the Manager, initially by an the authorized officer officers and person persons listed in Schedule EC. As used herein, or “Trading Day” shall mean any substitute or additional officer and person as designated by trading day on the Company and notified in writing to the Manager. The Company shall have the right to amend at any time and from time to time any such prior instruction provided that the Manager is given reasonable notice of such amendmentNYSE.
(bii) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to execute any Company order submitted to it hereunder to sell Shares and with respect to which the Manager is acting has agreed to act as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of saleAgent.
(ciii) The Company shall neither (i) not authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shareswriting. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agentShares; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(div) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of 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.
(ev) The compensation to the Manager for sales of the Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5equal to 2.50% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such daythis Agreement. Such rate of compensation shall not apply when the Manager acts as principal pursuant to the Terms Agreement. Any compensation or commission due and payable to the Manager hereunder with respect to any sale of Shares during a calendar month shall be deducted paid by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at in arrears on the relevant Applicable Time and pursuant first Trading Day of the following calendar month, by wire or internal bank transfer of same day funds to a separate Terms Agreementan account designated by the Manager. Notwithstanding The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the foregoing, in the event net proceeds of the Company engages for such Shares (the Manager for a sale of Shares that would constitute 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 transactionsNet Proceeds”).
(fvi) Settlement for sales of the Shares pursuant to this Agreement will occur on the second third Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) Net Proceeds 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 Company, or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (iA) indemnify and hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (iiB) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(gvii) If acting as sales agent hereunder, the The Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (iA) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (iiB) the commission payable by the Company to the Manager with respect to such sales.
(hviii) At each Applicable Time, on each Settlement Date, Date and at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms AgreementDate, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager 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 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares pursuant to this Agreement other than as set forth in Section 3 3(a) of this Agreement (each, a “Placement”), it may will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(jii) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of and delivered 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.
(kc) Each sale of the Shares to the Manager as principal shall be made in accordance with the terms of this Agreement and and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares.
(l) Subject to the limitations set forth herein . Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and as may be mutually agreed upon by the parties hereto, sales officers’ certificates pursuant to Section 5 of this Agreement and any Terms Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins 24 hours after the filing of a Quarterly Report on Form 10-Q other information or an Annual Report on Form 10-K as of and within the period documents required by the Exchange Act and ends, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public informationManager.
(m) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 and notified to the Manager in writing.
(nd) The Company acknowledges and agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but in no event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) there can be no assurance that the foregoing limitation shall not apply Manager will be successful in selling the Shares, (ii) the Manager will incur no liability or obligation to (A) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, or to a trustee or any other person acquiring 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 securities for Shares in accordance with the accounts terms of such personsthis Agreement, and (iiiii) such limitation the Manager shall not apply be under no obligation to purchase Shares on any day during which no sales are made a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.
Appears in 1 contract
Samples: Distribution Agency Agreement (Tsakos Energy Navigation LTD)
Sale and Delivery of the Shares. to the Underwriters; Closing. ------------------------------------------------------------
A. On the basis of the representationsrepresentations and warranties herein contained, warranties and agreements and subject to the terms and conditions herein set forth hereinforth, the Company agrees to issue and sell to each of the Underwriters the Firm Company Shares, and the Selling Shareholder agrees to sell to each of the Underwriters the Selling Shareholder Shares and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Manager agree that Selling Shareholder the Company may from time to time seek to sell number of Firm Shares through set forth opposite the Manager, as sales agent, or directly name of such Underwriter in Schedule A (the proportion which each Underwriter's share of ---------- the total number of the Firm Shares bears to the Managertotal number of Firm Shares is hereinafter referred to as such Underwriter's "underwriting obligation proportion"), as principal, as follows:
(a) The Company may submit to the Manager its instruction to sell Shares on any trading day on the NYSE (at a “Trading Day”) through placement instructions substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the Manager, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Manager. The Company shall have the right to amend at any time and from time to time any such prior instruction provided that the Manager is given reasonable notice purchase price of such amendment$__________ per share.
(b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. B. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute 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.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company to the Manager with respect to such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares 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 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 3 of this Agreement (each, a “Placement”), it may notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(k) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained contained, and shall be subject to the terms and conditions herein and therein set forth, the Company hereby grants an option to the Underwriters to purchase up to an additional 540,000 Option Shares at the same purchase price as shall be applicable to the Firm Shares. Each Terms Agreement The option hereby granted will expire if not exercised within the thirty (30) day period after the date of the Prospectus by giving written notice to the Company. The option granted hereby may be exercised in whole or in part (but not more than once), only for the purpose of covering over-allotments that may be made in connection with the offering and distribution of the Firm Shares. The notice of exercise shall specify set forth the number of Option Shares as to which the several Underwriters are exercising the option, and the time and date of payment and delivery thereof. Such time and date of delivery (the "Date of Delivery") shall be determined by you but shall not be later than three full business days after the exercise of such option, nor in any event prior to the Closing Time. If the option is exercised as to all or any portion of the Option Shares, the Option Shares as to which the option is exercised shall be purchased by the Underwriters, severally and not jointly, in their respective underwriting obligation proportions.
C. Payment of the purchase price for and delivery of certificates in definitive form representing the Firm Shares shall be made at the offices of Xxxxxx Xxxxxx & Company, Inc., 00 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000 or at such other place as shall be agreed upon by the Company and you, at 10:00 a.m., either (i) on the third full business day after the execution of this Agreement, or (ii) at such other time not more than ten full business days thereafter as you and the Company shall determine (unless, in either case, postponed pursuant to the term hereof), (such date and time of payment and delivery being herein called the "Closing Time"). In addition, in the event that any or all of the Option Shares are purchased by the Underwriters, payment of the purchase price for and delivery of certificates in definitive form representing the Option Shares shall be made at the offices of Xxxxxx Xxxxxx & Company, Inc. in the manner set forth above, or at such other place as the Company and you shall determine, on the Date of Delivery as specified in the notice from you to the Company. Payment for the Firm Shares and the Option Shares shall be made to the Company and the Selling Shareholder by wire transfer in same-day funds to the accounts designated to the Underwriters in writing by the Company, respectively, and the Selling Shareholder against delivery to you for the respective accounts of the Underwriters of the Shares to be purchased by them.
D. The certificates representing the Manager pursuant thereto, the price Shares to be paid purchased by the Underwriters shall be in such denominations and registered in such names as you may request in writing at least two full business days before the Closing Time or the Date of Delivery, as the case may be. The certificates representing the Shares will be made available at the offices of Xxxxxx Xxxxxx & Company, Inc. or at such other place as Xxxxxx Xxxxxx & Company, Inc. may designate for examination and packaging not later than 10:00 a.m. at least one full business day prior to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with Closing Time or the Manager in Date of Delivery as the reoffering of the Shares, and the time and date and place of delivery of and payment for such Sharescase may be.
(l) Subject E. After the Registration Statement becomes effective, you intend to offer the Shares to the limitations set forth herein and public as may be mutually agreed upon by the parties hereto, sales pursuant to this Agreement and any Terms Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins 24 hours after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act and ends, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information.
(m) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 and notified to the Manager in writing.
(n) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but in no event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) the foregoing limitation shall not apply to (A) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of Prospectus, but after the Company or the Subsidiaries, or to a trustee or other person acquiring such securities for the accounts initial public offering of such persons, and (ii) such limitation shall not apply on any day during which no sales are made pursuant to this AgreementShares you may in your discretion vary the public offering price.
Appears in 1 contract
Sale and Delivery of the Shares. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, as sales agent, or directly to the Manager, as principal, as follows:
(a) The Company may submit to the Manager its instruction to sell Shares on any trading day on the NYSE (a “Trading Day”) through placement instructions substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the Manager, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Manager. The Company shall have the right to amend at any time and from time to time any such prior instruction provided that the Manager is given reasonable notice of such amendment.
(b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute 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.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company to the Manager with respect to such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares 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 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 3 of this Agreement (each, a “Placement”), it may notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(k) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be contained, but subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify , the number Company and the Bank hereby employ Trident as their agent to utilize its best efforts in assisting the Company with the Company's sale of the Shares in the Subscription Offering and Community Offering. If the Conversion is not consummated for any reason, or if the Conversion is consummated without using the services of Trident, Trident shall be entitled to be purchased by retain the Manager pursuant theretofees received up to the time that the Conversion is terminated or Trident's services no longer are utilized. Under the agreement with Trident, the price Savings Bank is also obligated to be paid indemnify Trident against certain liabilities and expenses, including legal fees, to which Trident may become subject in connection with its engagement. In the event the Company for is unable to sell a minimum of 93,500 Shares (or such Shareslesser amount as the Commissioner with the FDIC may permit) within the period herein provided, any provisions relating to rights ofthis Agreement shall terminate, and default by, underwriters acting together with the Manager in Company and the reoffering Bank shall refund promptly to any persons who have subscribed for any of the Shares, the full amount which it may have received from them, together with interest as provided in the Prospectus, and no party to this Agreement shall have any obligation to the time other party hereunder, except as set forth in Sections 6, 8 and date 9 hereof. Appropriate arrangements for placing the funds received from subscriptions for Shares in interest-bearing accounts with the Bank until all Shares are sold and place paid for were made prior to the commencement of the Subscription and Community Offerings, with provision for prompt refund to the purchasers as set forth above, or for delivery to the Company if all Shares are sold. If all conditions precedent to the consummation of the Conversion are satisfied, including the sale of all Shares required by the Plan to be sold, the Company agrees to issue or have issued such Shares and payment to release for delivery certificates to subscribers thereof for such Shares.
(l) Subject Shares on or promptly after the Closing Date against payment to the limitations set forth herein and Company by any means authorized pursuant to the Prospectus, at the principal office of the Company at 000 X. Xxxxx Xxxxxx, Xxxxx Xxxxx, Illinois 61818 or at such other place as may shall be mutually agreed upon by between the parties hereto, sales pursuant to this Agreement and any Terms Agreement may not be requested by . The date upon which Trident is paid the Company and need not be made by compensation due hereunder is herein called the Manager except during the period that begins 24 hours after the filing "Closing Date." Trident agrees either (a) upon receipt of an executed order form of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within subscriber to forward the period required by the Exchange Act and ends, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information.
(m) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales Common Stock ordered on or before twelve noon on the next business day following receipt or execution of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 an order form by the Company and notified Trident to the Manager Bank for deposit in writing.
a segregated account or (nb) The Company agrees that any offer to sell, any solicitation solicit indications of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but interest in no which event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) Trident will subsequently contact any potential subscriber indicating interest to confirm the foregoing limitation shall not apply interest and give instructions to (A) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, execute and return an order form or to a trustee or other person acquiring receive authorization to execute the order form on the subscribers behalf, (ii) Trident will mail acknowledgments of receipt of orders to each subscriber confirming interest on the business day following such securities for the confirmation, (iii) Trident will debit accounts of such personssubscribers on the third business day ("debit date") following receipt of the confirmation referred to in (i), and (iiiv) Trident will forward completed order forms together with such limitation funds to the Bank on or before twelve noon on the next business day following the debit date for deposit in a segregated account. Trident acknowledges that if the procedure in (b) is adopted, subscribers' funds are not required to be in their accounts until the debit date. In addition to the expenses specified in Section 6 hereof, Trident shall not apply on any day during which no sales are made pursuant to this Agreement.receive the following compensation for its services hereunder upon completion and closing of the Conversion and Offerings:
Appears in 1 contract
Sale and Delivery of the Shares. (a) On the basis of the representations, warranties and agreements and herein contained, but subject to the terms and conditions herein set forth hereinforth, the Company FPL Group agrees to issue and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, as sales agent, and the Manager agrees to use its reasonable efforts to sell, as sales agent for FPL Group, the Shares on the following terms.
(i) The Shares are to be sold on a daily basis or directly to otherwise, in each case as shall be agreed by FPL Group and the Manager, on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (B) FPL Group has instructed the Manager by duly executed Placement Instruction (as principal, as follows:
defined below) to make such sales and (aC) The Company may submit FPL Group has satisfied its obligations under Section 5 of this Agreement. FPL Group's instruction to the Manager its instruction to sell Shares on any trading day on the NYSE (a “Trading Day”) through placement instructions shall be substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the ManagerA (each, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Managera "Placement Instruction"). The Company shall have the right to amend at any time and from time to time any such prior instruction provided that the Manager is given reasonable notice of such amendment.
(b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell all of the Shares designated for sale in FPL Group's Placement Instruction. A Placement Instruction shall be effective unless and until (I) all Shares to be issued thereunder have been sold, or (II) FPL Group withdraws such Placement Instruction (which withdrawal shall be effected in the same manner as the issuance of such Placement Instruction) before all of the Shares to be issued thereunder have been sold (which withdrawal shall be effective with respect to such number of such Shares which have not been sold prior to the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling Shares, Manager's receipt of such notice of withdrawal).
(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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In addition, the Company FPL Group or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimileelectronic mail), suspend an the offering of the Shares with respect to which the Manager is acting as sales agentShares; provided, however, that such suspension or termination shall not affect or impair the parties’ ' respective obligations with respect to the Shares sold hereunder under this Agreement prior to the giving of such notice; .
(iii) The Manager hereby covenants and providedagrees not to make any sales of the Shares on behalf of FPL Group, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under pursuant to this Section 4(b3(a), other than during (A) by means of ordinary brokers' transactions between members of the period in which NYSE that qualify for delivery of a prospectus relating Prospectus to the Shares is required to be delivered NYSE in accordance with Rule 153 under the Act (whether physically or through compliance with Rule 172 under the Securities Act or any similar ruleother method permitted by law that is deemed to constitute an "at-the-market" offering of the Shares as defined in Rule 415 under the Securities Act (such transactions are hereinafter referred to as "At the Market Offerings") and (B) such other sales of the Shares on behalf of FPL Group in its capacity as agent of FPL Group as shall be waived during agreed by FPL Group and the period Manager. FPL Group acknowledges and agrees that in the event (A) a sale of any such suspension.
(dShares on behalf of FPL Group designated in the applicable Placement Instruction would constitute the sale of a "block" within the meaning of Rule 10b-18(a)(5) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute a “"distribution,” " within the meaning of Rule 100 of Regulation M under the Exchange ActAct or (B) in connection with a sale of Shares designated in such Placement Instruction that is not an At the Market Offering, the Company Manager reasonably believes, and has so advised FPL Group prior to the sale of any such Shares, that it may be deemed an "underwriter" under the Securities Act in connection with a sale referred to in clause (A) or (B) above, FPL Group will, if it does not withdraw the applicable Placement Instruction following its receipt of such notice, provide to the Manager, at the Manager's request upon reasonable advance notice to FPL Group, on or prior to the Settlement Date with respect to the sale of the Shares designated in such Placement Instruction, the opinions of counsel, accountants' letters and officers' certificates pursuant to Section 5 hereof that FPL Group would be required to provide to the Manager will agree in connection with a sale of the Shares pursuant to a Terms Agreement, each dated such Settlement Date, and such other documents and information as the Manager shall reasonably request.
(iv) The compensation that is customary to the Manager, as an agent of FPL Group, for sales of the Shares shall be 0.75% of the gross sales price of the Shares sold pursuant to this Section 3(a). Such rate of compensation shall not apply when the Manager acts as principal. The proceeds of the sale of any Shares, after deduction of (A) such compensation payable to the Manager with respect to such transactionssale and (B) any transaction fees imposed by any governmental or self-regulatory organization with respect to such sale, shall constitute the net proceeds to FPL Group for such sale of such Shares (the "Net Proceeds").
(fv) The Manager shall provide written confirmation to FPL Group following the close of trading on the NYSE each day on which the Shares are sold under this Section 3(a) setting forth the amount of Shares sold on such day, the compensation payable by FPL Group to the Manager with respect to such sales, and the Net Proceeds to FPL Group with respect to such sales.
(vi) Settlement for sales of the Shares pursuant to this Agreement Section 3(a) will occur on the second Trading Day (or such earlier third business day as is industry practice for regular-way trading) following the date on which such sales are made made, unless FPL Group and the Manager agree on a later date (each such dayday or later date for settlement, a “"Settlement Date”"). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company FPL Group to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) Net Proceeds 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 Manager’s or its designee’s 's account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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, DTC in return for payments in same day funds delivered to the account designated by the CompanyFPL Group. If the Company or its transfer agent (if applicable) FPL Group shall default on its obligation fail to deliver the Shares on any Settlement Date, the Company FPL Group shall (iA) indemnify and hold the Manager harmless against any loss, claim, damage, claim or expense (including reasonable legal fees and expenses), damage arising from or as incurred, arising out a result of or in connection with such default failure by the Company FPL Group and (iiB) pay the Manager any commission, discount or other compensation payable pursuant to clause (iv) of this Section 3(a) to which it would otherwise be entitled absent such default. If the Manager shall fail to deliver Net Proceeds on any Settlement Date for the Shares delivered by FPL Group, the Manager will, in addition to its liability for such Net Proceeds amount, pay FPL Group interest on the amount of such Net Proceeds based on the effective overnight Federal Funds rate.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company to the Manager with respect to such sales.
(hvii) At each Applicable Time, on each Settlement Date, at each Date and Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement(as defined below), the Company FPL Group shall be deemed to have affirmed that each representation, warranty, covenant representation and other agreement warranty contained in this AgreementAgreement is true and correct in all respects as though made at and as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares as sales agent on behalf of FPL Group shall be subject to the continuing accuracy of the representations and warranties of the Company FPL Group herein, to the performance by the Company FPL Group of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 5 of this Agreement.
(b) (i) If the Company FPL Group wishes to issue and sell the Shares other than as set forth in Section 3 3(a) of this Agreement (each, a “Placement”"Principal Transaction"), it may will notify the Manager of the proposed terms of such PlacementPrincipal Transaction. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the CompanyFPL Group, wishes to accept amended terms, the Manager and the Company FPL Group will enter into a Terms Agreement setting forth the terms of such PlacementPrincipal Transaction.
(jii) The terms set forth in a Terms Agreement will not be binding on the Company FPL Group or the Manager unless and until the Company FPL Group and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(kc) Under no circumstances shall the aggregate gross sales proceeds of the Shares sold pursuant to this Agreement and any Terms Agreement exceed the Maximum Amount.
(d) The Manager shall calculate on a weekly basis the average daily trading volume (as defined by Rule 100 of Regulation M under the Exchange Act) of the Common Stock. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, such party shall promptly notify the other party thereof, whereupon sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that exemptive provision or another exemptive provision shall have been satisfied in the judgment of each party.
(e) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company FPL Group herein contained and shall be subject to the relevant terms and conditions herein and therein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company FPL Group for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a "Time of Delivery") and place of delivery of and payment for such Shares.
(l) Subject to the limitations set forth herein . Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants' letters and as may be mutually agreed upon by the parties hereto, sales officers' certificates pursuant to Section 5 of this Agreement and any Terms Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins 24 hours after the filing of a Quarterly Report on Form 10-Q other information or an Annual Report on Form 10-K as of and within the period documents required by the Exchange Act and ends, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, no Manager.
(f) No sales of Shares shall take place, and the Company FPL Group 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, FPL Group is or could be deemed to be, be in possession of material non-public information.
(mg) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales of Shares under this Agreement, any Terms Agreement FPL Group acknowledges and the Alternative Distribution Agreements, the Maximum Amount. 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 and notified to the Manager in writing.
(n) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but in no event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) there can be no assurance that the foregoing limitation shall not apply Manager will be successful in selling the Shares, (ii) the Manager will incur no liability or obligation to (A) exercise of any option, warrant, right FPL Group or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, or to a trustee or other person acquiring or entity if it does not sell Shares for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such securities for Shares in accordance with the accounts terms of such personsthis Agreement, and (iiiii) such limitation the Manager shall not apply be under no obligation to purchase Shares on any day during which no sales are made a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and FPL Group.
Appears in 1 contract
Sale and Delivery of the Shares. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, acting as sales agent, or directly to the Manager, Manager acting as principal, as follows:
(a) The Company may submit to the Manager its instruction orders (including any price, time or size limits or other customary parameters and conditions) to sell Shares on any trading day on the NYSE Trading Day (a “Trading Day”) through placement instructions substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the Manager, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Managerdefined below). The Company shall have the right to amend at any time and from time to time any such prior instruction provided that If the Manager is given reasonable notice of such amendment.
(b) Subject agrees to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically proposed transaction or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act, if the Company and the Manager will mutually agree to compensation that is customary modified terms for the Manager with respect to such transactions.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such dayproposed transaction, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that then the Manager shall have given promptly send to the Company notice by the means set forth under Section 10 a Transaction Notice substantially in the form of Schedule D hereto, confirming the agreed terms of such designee prior to the Settlement Date) at The Depository Trust Company 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 Companyproposed transaction. If the Company or its transfer agent (if applicable) shall default on its obligation wishes such proposed transaction to deliver become a binding agreement between it and the Shares on any Settlement DateManager, the Company shall (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees promptly indicate its acceptance thereof by countersigning and expenses), as incurred, arising out of or in connection with returning such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company Transaction Notice to the Manager with respect to a written acceptance of such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance Transaction Notice by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as means set forth in under Section 3 10 hereof or by sending an email confirming acceptance of this Agreement such Transaction Notice (each, a “PlacementTime of Acceptance”); provided, it may notify that following such email confirming acceptance, the Company will also be obligated to promptly return the countersigned Transaction Notice to the Manager of by the proposed means set forth in Section 8 hereof for the parties’ records. The terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason reflected in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, a Transaction Notice shall become binding on the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms AgreementCompany, 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.
(k) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant theretothis Agreement, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date and place of delivery of and payment for such Shares.
(l) Subject to the limitations set forth herein and as may be mutually agreed upon by the parties hereto, sales pursuant to this Agreement and any Terms Agreement may not be requested only if accepted by the Company and need not be made by no later than the Manager except during the period that begins 24 hours after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act and endstimes, for all periodsspecified in such Transaction Notice. Each Transaction Notice shall specify, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or among other results of operations. Notwithstanding the foregoing, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information.
(m) 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 Sharesthings, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 and notified to the Manager in writing.following:
(n) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but in no event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) the foregoing limitation shall not apply Trading Day(s) on which the Shares subject to such transaction are intended to be sold (A) exercise of any optioneach, warrant, right or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and “Purchase Date”);
(ii) the maximum number of Shares that the Company intends to sell on, or over the course of, such limitation Purchase Date(s); provided that the number of Shares sold on each such Purchase Date, when the Shares are sold through the Manager, acting as sales agent, shall not apply be no more than 15% of the average daily trading volume in the Common Shares for the 30 Trading Days preceding the date of delivery of the Transaction Notice or as otherwise agreed between the Company and the Manager; and
(iii) the lowest price, if any, at which the Company is willing to sell Shares on any day during which no sales are made each such Purchase Date or a formula pursuant to this Agreementwhich such lowest price shall be determined (each, a “Floor Price”).
Appears in 1 contract
Samples: Distribution Agency Agreement (Canadian Solar Inc.)
Sale and Delivery of the Shares. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, acting as sales agent, or directly to the Manager, Manager acting as principal, as follows:
(a) The Company may submit to the Manager its instruction orders (including any price, time or size limits or other customary parameters and conditions) to sell Shares on any trading day on the NYSE Trading Day (a “Trading Day”) through placement instructions substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the Manager, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Managerdefined below). The Company shall have the right to amend at any time and from time to time any such prior instruction provided that If the Manager is given reasonable notice of such amendment.
(b) Subject agrees to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically proposed transaction or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act, if the Company and the Manager will mutually agree to compensation that is customary modified terms for the Manager with respect to such transactions.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such dayproposed transaction, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that then the Manager shall have given promptly send to the Company notice by the means set forth under Section 10 a Transaction Notice substantially in the form of Schedule D hereto, confirming the agreed terms of such designee prior to the Settlement Date) at The Depository Trust Company 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 Companyproposed transaction. If the Company or its transfer agent (if applicable) shall default on its obligation wishes such proposed transaction to deliver become a binding agreement between it and the Shares on any Settlement DateManager, the Company shall (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees promptly indicate its acceptance thereof by countersigning and expenses), as incurred, arising out of or in connection with returning such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company Transaction Notice to the Manager with respect to a written acceptance of such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance Transaction Notice by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as means set forth in under Section 3 10 hereof or by sending an email confirming acceptance of this Agreement such Transaction Notice (each, a “PlacementTime of Acceptance”); provided, it may notify that following such email confirming acceptance, the Company will also be obligated to promptly return the countersigned Transaction Notice to the Manager of by the proposed means set forth in Section 10 hereof for the parties’ records. The terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason reflected in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, a Transaction Notice shall become binding on the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms AgreementCompany, 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.
(k) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant theretothis Agreement, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date and place of delivery of and payment for such Shares.
(l) Subject to the limitations set forth herein and as may be mutually agreed upon by the parties hereto, sales pursuant to this Agreement and any Terms Agreement may not be requested only if accepted by the Company and need not be made by no later than the Manager except during the period that begins 24 hours after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act and endstimes, for all periodsspecified in such Transaction Notice. Each Transaction Notice shall specify, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or among other results of operations. Notwithstanding the foregoing, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information.
(m) 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 Sharesthings, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 and notified to the Manager in writing.following:
(n) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but in no event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) the foregoing limitation shall not apply Trading Day(s) on which the Shares subject to such transaction are intended to be sold (A) exercise of any optioneach, warrant, right or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and “Purchase Date”);
(ii) the maximum number of Shares that the Company intends to sell on, or over the course of, such limitation Purchase Date(s); provided that the number of Shares sold on each such Purchase Date, when the Shares are sold through the Manager, acting as sales agent, shall not apply be no more than 15% of the average daily trading volume in the Common Stock for the 30 Trading Days preceding the date of delivery of the Transaction Notice or as otherwise agreed between the Company and the Manager; and
(iii) the lowest price, if any, at which the Company is willing to sell Shares on any day during which no sales are made each such Purchase Date or a formula pursuant to this Agreementwhich such lowest price shall be determined (each, a “Floor Price”).
Appears in 1 contract
Samples: Distribution Agreement (Invesco Mortgage Capital Inc.)
Sale and Delivery of the Shares. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, as sales agent, or directly to the Manager, as principal, as follows:
(a) The Company may submit to the Manager its instruction to sell Shares on any trading day on the NYSE (a “Trading Day”) through placement instructions substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the Manager, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Manager. The Company shall have the right to amend at any time and from time to time any such prior instruction provided that the Manager is given reasonable notice of such amendment.
(b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute 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.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company to the Manager with respect to such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares as sales agent shall be subject to the continuing accuracy ------------------------------------------------------ of the representations and warranties of the Company hereinherein contained, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 3 of this Agreement (each, a “Placement”), it may notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(k) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be but subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify , the number Company and the Association hereby employ Trident as their agent to utilize its best efforts to assist the Company with the Company's sale of the Shares to be purchased by in the Manager pursuant theretoOfferings, and Trident hereby accepts such employment. The employment of Trident hereunder shall terminate (a) forty- five (45) days after the price to be paid to Subscription and Community Offering closes, unless the Company for and the Association, with the approval of the OTS, are permitted to extend such Sharesperiod of time, any provisions relating or (b) upon consummation of the Conversion, whichever date shall first occur. In the event the Company is unable to rights ofsell a minimum of 191,250 Shares (or such lesser amount as the OTS may permit) within the period herein provided, this Agreement shall terminate, and default by, underwriters acting together with the Manager in Company and the reoffering Association shall refund promptly to any persons who have subscribed for any of the Shares, the full amount which it may have received from them, together with interest as provided in the Prospectus, and no party to this Agreement shall have any obligation to the time other party hereunder, except as set forth in Sections 6, 8, 9 and date 10 hereof. Appropriate arrangements for placing the funds received from subscriptions for Shares in special interest-bearing accounts with the Association until all Shares are sold and place paid for will be made prior to the commencement of the Subscription and Community Offering, with provision for prompt refund to the purchasers as set forth above, or for delivery to the Company if all Shares are sold. If all conditions precedent to the consummation of the Conversion are satisfied, including the sale of all Shares required by the Plan to be sold, the Company agrees to issue or have issued such Shares and payment to release for delivery certificates to subscribers thereof for such Shares.
(l) Subject Shares on or as soon as possible following the Closing Date against payment to the limitations set forth herein and Company by any means authorized pursuant to the Prospectus, at the principal office of the Company, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000, or at such other place as may shall be mutually agreed upon by between the parties hereto, sales pursuant to this Agreement and any Terms Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins 24 hours after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act and ends, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, no sales of Shares shall take place, and The date upon which the Company shall not request release or deliver the sale of any Shares that would be sold, and sold in the Manager shall not be obligated to sell, during any period in which the Company is, or could be deemed to beOfferings, in possession accordance with the terms hereof, is herein called the "Closing Date." Trident agrees either (a) upon receipt of material non-public information.
(m) Under no circumstances shall an executed order form of a subscriber to forward the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales Common Stock ordered on or before twelve noon on the next business day following receipt or execution of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 an order form by the Company and notified Trident to the Manager Association for deposit in writing.
a segregated account or (nb) The Company agrees that any offer to sell, any solicitation solicit indications of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but interest in no which event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) Trident will subsequently contact any potential subscriber indicating interest to confirm the foregoing limitation shall not apply interest and give instructions to (A) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, execute and return an order form or to a trustee or other person acquiring receive authorization to execute the order form on the subscriber's behalf, (ii) Trident will mail acknowledgements of receipt of orders to each subscriber confirming interest on the business day following such securities for the confirmation, (iii) Trident will debit accounts of such personssubscribers on the third business day ("debit date") following receipt of the confirmation referred to in (i), and (iiiv) Trident will forward completed order forms together with such limitation funds to the Association on or before twelve noon on the next business day following the debit date for deposit in a segregated account. Trident acknowledges that if the procedure in (b) is adopted, subscribers' funds are not required to be in their accounts until the debit date. Trident shall not apply on any day during which no sales are made pursuant to this Agreement.receive the following compensation and expense reimbursement for its services hereunder:
Appears in 1 contract
Sale and Delivery of the Shares. Subject to the terms and conditions herein set forth, the Company and the Association hereby appoint Trident (i) as their exclusive financial advisory and marketing agent to utilize its best efforts to solicit subscriptions for Shares of the Common Stock and to advise and assist the Company and the Association with respect to the Company's sale of the Shares in the Subscription and Community Offering and (ii) to participate in the Subscription and Community Offering in the areas of market making, research coverage and syndicate formation (if necessary). On the basis of the representations, warranties warranties, and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, as sales agent, or directly to the Manager, as principal, as follows:
(a) The Company may submit to the Manager its instruction to sell Shares on any trading day on the NYSE (a “Trading Day”) through placement instructions substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the Manager, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Manager. The Company shall have the right to amend at any time and from time to time any such prior instruction provided that the Manager is given reasonable notice of such amendment.
(b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceedherein contained, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute 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.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company to the Manager with respect to such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares 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 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 3 of this Agreement (each, a “Placement”), it may notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(k) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify , Trident accepts such appointment and agrees to consult with and advise the number of Company and the Shares to be purchased by the Manager pursuant thereto, the price to be paid Association as to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager matters set forth in the reoffering letter agreement ("Letter Agreement"), dated March 31, 1998, between the Association and Trident (a copy of the Shares, and the time and date and place of delivery of and payment for such Shares.
(l) Subject to the limitations set forth herein and which is attached hereto as may be mutually agreed upon by the parties hereto, sales pursuant to this Agreement and any Terms Agreement may not be requested Exhibit A). It is acknowledged by the Company and need the Association that Trident shall not be made by the Manager except during the period that begins 24 hours after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act and ends, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, no sales of Shares shall take place, and the Company shall not request the sale of to purchase any Shares that would be sold, and the Manager shall not be obligated to selltake any action which is inconsistent with all applicable laws, during any period regulations, decisions or orders. In the event of a Syndicated Community Subscription and Community Offering, Trident will assemble and manage a selling group of broker-dealers which are members of the National Association of Securities Dealers, Inc. (the "NASD") to participate in which the Company is, or could be deemed to be, in possession solicitation of material non-public information.
purchase orders for shares under a selected dealers' agreement (m) 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"Selected Dealers' Agreement"), the aggregate offering price form of the Shares sold which is set forth as Exhibit B to this Agreement. The obligations of Trident pursuant to this Agreement would exceed, together with all sales shall terminate upon the completion or termination or abandonment of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 Plan by the Company and notified to the Manager in writing.
(n) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one upon termination of the Manager or the Alternative Managers on any single given daySubscription and Community Offering, but in no event more later than onethe date (the "End Date") which is 45 days after the Closing Date (as hereinafter defined). All fees or expenses due to Trident but unpaid will be payable to Trident in next day funds at the earlier of the Closing Date (as hereinafter defined) or the End Date. In the event the Subscription and Community Offering is extended beyond the End Date, the Company, the Association and Trident may agree to renew this Agreement under mutually acceptable terms. In the event the Company is unable to sell a minimum of __________ Shares having an aggregate price of $1,530,000 (or such lesser amount approved by the OTS) within the period herein provided, this Agreement shall terminate and the Company shall in no event request that refund to any persons who have subscribed for any of the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) the foregoing limitation shall not apply to (A) exercise of any option, warrant, right or any conversion privilege full amount which it may have received from them plus accrued interest as set forth in the instrument governing such security or (B) sales solely to employees or security holders Prospectus; and none of the parties to this Agreement shall have any obligation to the other parties hereunder, except as otherwise set forth in this Section 2 and in Sections 6, 8 and 9 hereof. In the event the Subscription and Community Offering is terminated for any reason not attributable to the action or inaction of Trident, Trident shall be paid the fees and expenses due to the date of such termination pursuant to subparagraphs (a) and (d) below. If all conditions precedent to the consummation of the Conversion, including, without limitation, the sale of all Shares required by the Plan to be sold, are satisfied, the Company or the Subsidiariesagrees to issue, or have issued, the Shares sold in the Subscription and Community Offering and to release for delivery certificates for such Shares on the Closing Date (as hereinafter defined) against payment to the Company by any means authorized by the Plan, provided however, that no funds shall be released to the Company until the conditions specified in Section 7 hereof shall have been complied with to the reasonable satisfaction of Trident and its counsel. The release of Shares against payment therefor shall be made at _.m., Central Time, on a trustee date and at a place acceptable to the Company, the Association and Trident or such other person acquiring such securities time or place as shall be agreed upon by the Company, the Association and Trident. Certificates for shares shall be delivered directly to the accounts of such personspurchasers in accordance with their directions. The date upon which the Company shall release or deliver, or have released or delivered, the Shares sold in the Subscription and (ii) such limitation Community Offering, in accordance with the terms herein, is called the "Closing Date." Trident shall not apply on any day during which no sales are made pursuant to this Agreement.receive the following compensation for their services hereunder:
Appears in 1 contract
Sale and Delivery of the Shares. On (a) From the basis date of this Agreement until the representationsclose of business 180 days after the Effective Date (or such other offering period as is set forth in the Prospectus) (the "Offering Period"), warranties the Company hereby appoints the Underwriter as its exclusive agent to sell the Shares for the Company's account at a purchase price of $5.00 per Share. The Underwriter accepts such appointment and agreements agrees to use its best efforts to sell the Shares, in accordance with and subject to the terms and conditions of this Agreement. The Company acknowledges that the Underwriter is not obligated to purchase any or all of the Shares on a firm commitment basis.
(b) The Underwriter shall deposit all funds received by it from the sale of the Shares in an escrow account with an escrow agent selected by the Company, by 12:00 noon of the next business day in compliance with NASD Notice to Members 84-7, dated January 30, 1984, and shall instruct any co-underwriters or selected dealers to do likewise. Such deposits shall continue to be made until either (i) such funds are turned over to the Company for the Shares or (ii) such funds are returned directly to the persons who subscribe for the Shares, without interest thereon or deduction therefrom; all in accordance with the terms of an escrow agreement to be entered into prior to the Effective Date.
(c) On or before the fifth business day following the Company's and the Underwriter's receipt of notification from the escrow agent that it has received cash or cleared funds for 1,000,000 Shares during the Offering Period, the initial closing on the sale of such Shares shall occur at a time and place agreed upon by the Company and the Underwriter, provided that the other conditions to Closing set forth hereinin Section 7 hereof have been satisfied. The date of such closing is referred to herein as the "Initial Closing Date" and such closing is referred to as the "Initial Closing." At the Initial Closing, the Company will deliver to the Underwriter the certificates for the Shares (in such denominations and in such names as the Underwriter shall request upon at least 48 hours prior written notice) against payment to the Company by the escrow agent, on behalf of the purchasers of such Shares (by wire transfer or other immediately available funds acceptable to the Company), of the public offering price of such Shares, less the Underwriter's selling commission equal to ten percent (10%) of the public offering price of such Shares. Such commission shall be paid to the Underwriter by the escrow agent at the Initial Closing.
(d) Following the Initial Closing, the Company and the Manager Underwriter shall mutually agree that upon the time and place for additional closings on Shares sold during the balance of the Offering Period and shall instruct the escrow agent, in writing signed by both the Company may from time and the Underwriter, to time seek make payment for any Shares as to sell Shares through the Manager, as sales agent, or directly which a closing shall occur to the ManagerCompany, as principalless the 10% selling commission payable to the Underwriter for such Shares, as follows:against delivery to the Underwriter by the Company of certificates for the Shares sold at such closing. Such commission shall be paid to the Underwriter by the escrow agent at such closing.
(ae) The Company may submit In offering the Shares for sale the Underwriter is acting solely as agent for the Company. Any such offer shall be made upon the terms and subject to the Manager conditions set forth in the Registration Statement and Prospectus. Neither the Underwriter nor any person acting on its instruction behalf, including any co-underwriter or selected dealer, shall have any authority to sell give any information or make any representations in connection with any offer or sale of the Shares on other than as contained in the Prospectus or as is otherwise expressly authorized in writing by the Company. The Underwriter shall have the right to engage the services of co-underwriters with regard to the offering contemplated hereby pursuant to separate written agreement in a form approved by the Company. Such separate agreement shall provide in part that (i) the Underwriter shall act as managing underwriter hereunder, (ii) the rights of the co-underwriters shall not exceed the rights of the managing underwriter, (iii) the liabilities of the co-underwriters shall not be less than the liabilities of the managing underwriter, (iv) the managing underwriter shall have the right to allot any trading day on portion of the NYSE Underwriter's compensation to the co-underwriters and (v) the managing underwriter shall have the right to reject orders from such co-underwriters, in whole or in part, for any of the Shares to be offered in contemplation of this Agreement. The Underwriter also may engage registered dealers selected by it to solicit sales of Shares pursuant to a “Trading Day”) through placement instructions Selected Dealer Agreement, substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the ManagerExhibit A, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Manager. The Company shall have the right to amend at any time and from time to time any such prior instruction provided that the Manager is given reasonable notice of such amendment.
(b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute 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.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company to the Manager with respect to such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares 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 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 3 of this Agreement (each, a “Placement”), it may notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in allow such concession (out of its sole discretionunderwriting commission) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(k) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement as it may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date and place of delivery of and payment for such Shares.
(l) Subject to the limitations set forth herein and as may be mutually agreed upon by the parties hereto, sales pursuant to this Agreement and any Terms Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins 24 hours after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and determine within the period required by the Exchange Act and ends, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information.
(m) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 and notified to the Manager in writing.
(n) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but in no event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) the foregoing limitation shall not apply to (A) exercise of any option, warrant, right or any conversion privilege limits set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, Registration Statement and (ii) such limitation shall not apply on any day during which no sales are made pursuant to this AgreementProspectus.
Appears in 1 contract
Samples: Underwriting Agreement (Bright Technologies Com Inc)
Sale and Delivery of the Shares. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, acting as sales agent, or directly to the Manager, Manager acting as principal, as follows:
(a) The Company may submit to the Manager its instruction orders (including any price, time or size limits or other customary parameters and conditions) to sell Shares on any trading day on Trading Day (as defined below). If the NYSE (Manager agrees to the terms of such proposed transaction or if the Company and the Manager mutually agree to modified terms for such proposed transaction, then the Manager shall promptly send to the Company by the means set forth under Section 8 a “Trading Day”) through placement instructions Transaction Notice substantially in the form attached hereto as of Schedule D. Instructions C hereto, confirming the agreed terms of such proposed transaction. If the Company wishes such proposed transaction to become a binding agreement between it and the Manager, the Company shall promptly indicate its acceptance thereof by countersigning and returning such Transaction Notice to the Manager with a written acceptance of such Transaction Notice by the means set forth under Section 8 hereof or by sending an email confirming acceptance of such Transaction Notice (each, a "Time of Acceptance"); provided, that following such email confirming acceptance, the Company will also be submitted obligated to promptly return the countersigned Transaction Notice to the Manager by the means set forth in Section 8 hereof for the parties' records. The terms reflected in a Transaction Notice shall become binding on the Manager and the Company, subject to the terms and conditions of this Agreement, only if accepted by the Company and received by no later than the times, specified in such Transaction Notice. Each Transaction Notice shall specify, among other things, the following:
(i) the Trading Day(s) on which the Shares subject to such transaction are intended to be sold (each, a "Purchase Date");
(ii) the maximum number of Shares that the Company intends to sell on, or over the course of, such Purchase Date(s); provided that the number of Shares sold on each such Purchase Date, when the Shares are sold through the Manager, initially by an authorized officer and person listed acting as sales agent, shall be no more than 25% of the average daily trading volume in Schedule E, the Common Shares for the 30 Trading Days preceding the date of delivery of the Transaction Notice or any substitute or additional officer and person as designated by otherwise agreed between the Company and notified in writing to the Manager; and
(iii) the lowest price, if any, at which the Company is willing to sell Shares on each such Purchase Date or a formula pursuant to which such lowest price shall be determined (each, a "Floor Price"). The Company As used herein, "Trading Day" shall have the right to amend at mean any time and from time to time any such prior instruction provided that the Manager is given reasonable notice of such amendmenttrading day on NASDAQ.
(b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting has agreed to act as sales agentagent under the applicable Transaction Notice. The Company acknowledges and agrees that (iA) there can be no assurance that the Manager will be successful in selling the Shares, (iiB) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement and (iiiC) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Unless otherwise agreed to between the Manager and the Company, the Company shall neither (i) not authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price Floor Price therefor designated from time to time by the Company and notified pursuant to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Sharesapplicable Transaction Notice. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; notice and provided, provided further, except as provided above, that (i) any obligation under Sections 4(k4(u), 4(l4(v), 4(m4(w), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b4(x), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement, any Transaction Notice and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of the Shares on any given day with respect to which the Manager acts as sales agent under this Agreement hereunder shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5up to 2.00% of the gross offering proceeds of for the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time Time. Any compensation or commission due and pursuant payable to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for as principal will be at a sale of Shares that would constitute a “distribution,” within price agreed upon at 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 transactionsrelevant Applicable Time.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second third Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “"Settlement Date”"). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s 's or its designee’s 's account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 Company, or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (iA) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (iiB) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE NASDAQ each day in which the Shares are sold under this Agreement and the applicable Transaction Notice setting forth (iA) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (iiB) the commission payable by the Company to the Manager with respect to such sales.
(h) The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to Section 3(a), other than (A) by means of ordinary brokers' transactions that qualify for delivery of a Prospectus in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as "At each Applicable Timethe 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 Manager under the applicable Transaction Notice. The Company acknowledges and agrees that in the event a sale of the Shares on behalf of the Company would constitute the sale of a "block" under Rule 10b-18(a)(5) under the Exchange Act or a "distribution" within the meaning of Rule 100 of Regulation M under the Exchange Act or the Manager reasonably believes it may be deemed an "underwriter" under the Act in a transaction that is not an At the Market Offering, the Company will provide to the Manager, at the Manager's request and upon reasonable advance notice to the Company, on each or prior to any Settlement Date, at each Representation Date the opinions of counsel, accountants' letters and each date on which Shares are delivered officers' certificates pursuant to Section 5 hereof that the Company would be required to provide to the Manager in connection with a sale of Shares pursuant to a Terms Agreement, each dated such Settlement Date, and such other documents and information as the Manager shall reasonably request.
(i) On each Settlement Date and at each Representation Date, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent under any Transaction Notice or to act as principal pursuant to a Terms 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 5 of this Agreement.
(ij) If the Company wishes to issue and sell the Shares other than as set forth in this Section 3 of this Agreement (each, a “"Placement”"), it may will notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(jk) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(kl) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company contained herein contained and in any Terms Agreement and shall be subject to the terms and conditions set forth herein and therein set forthin any Terms Agreement. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a "Principal Settlement Date") and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants' letters and officers' certificates pursuant to Section 5 of this Agreement and any other information or documents required by the Manager.
(lm) Subject to the limitations set forth herein (including, but not limited to the following sentence) and as may be mutually agreed upon by the parties heretoCompany and the Manager, sales pursuant to this Agreement Agreement, any Transaction Notice and any Terms Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins 24 hours after the filing of a Quarterly Report quarterly report on Form 106-Q K or an Annual Report on Form 1020-K as of F and within the period required by the Exchange Act (each such date, a "Filing Date") and ends, for all periods, ends two weeks before prior to the filing of the immediately succeeding press release or Company's public announcement containing the Company’s earnings, revenues or other of its results of operationsoperations for the quarter in which such filing is made. 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, is or could be deemed to be, in possession of material non-public information.
(m) Under no circumstances shall , which may include the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 and notified to the Manager in writing.
(n) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but in no event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) the foregoing limitation shall not apply to (A) exercise of any option, warrant, right or any conversion privilege set forth information customarily included in the instrument governing such security Company's public announcement of its quarterly or (B) sales solely to employees or security holders annual results of the Company or the Subsidiaries, 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 Agreementoperations.
Appears in 1 contract
Sale and Delivery of the Shares. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, acting as sales agent, or directly to the Manager, Manager acting as principal, as follows:
(a) The Company may submit to the Manager its instruction orders (including any price, time or size limits or other customary parameters and conditions) to sell Shares on any trading day on Trading Day (as defined below). If the NYSE (Manager agrees to the terms of such proposed transaction or if the Company and the Manager mutually agree to modified terms for such proposed transaction, then the Manager shall promptly send to the Company by the means set forth under Section 10 a “Trading Day”) through placement instructions Transaction Notice substantially in the form attached hereto as of Schedule D. Instructions will be submitted by D hereto, confirming the agreed terms of such proposed transaction. If the Company wishes such proposed transaction to become a binding agreement between it and received by the Manager, initially the Company shall promptly indicate its acceptance thereof by an authorized officer countersigning and person listed in Schedule E, or any substitute or additional officer and person as designated returning such Transaction Notice to the Manager with a written acceptance of such Transaction Notice by the means set forth under Section 10 hereof or by sending an email confirming acceptance of such Transaction Notice (each, a “Time of Acceptance”); provided, that following such email confirming acceptance, the Company and notified in writing will also be obligated to promptly return the countersigned Transaction Notice to the ManagerManager by the means set forth in Section 10 hereof for the parties’ records. The Company terms reflected in a Transaction Notice shall have the right to amend at any time and from time to time any such prior instruction provided that the Manager is given reasonable notice of such amendment.
(b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares become binding on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, only if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time accepted by the Company and notified to no later than the Manager times specified in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Sharessuch Transaction Notice. In additionEach Transaction Notice shall specify, among other things, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.following:
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute 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.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of NASDAQ (as defined below) Trading Day(s) on which the Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company to the Manager with respect subject to such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares transaction are delivered intended to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares 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 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 3 of this Agreement sold (each, a “PlacementPurchase Date”);
(ii) the maximum number of Shares that the Company intends to sell on, it may notify or over the Manager course of, such Purchase Date(s); provided that the number of Shares sold on each such Purchase Date shall be no more than 25% of the proposed terms average daily trading volume in the Common Stock for the 30 Trading Days preceding the date of such Placement. If delivery of the Manager, acting Transaction Notice or as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until otherwise agreed between the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.Manager; and
(kiii) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreementlowest price, which will provide for the sale of such Shares toif any, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date and place of delivery of and payment for such Shares.
(l) Subject to the limitations set forth herein and as may be mutually agreed upon by the parties hereto, sales pursuant to this Agreement and any Terms Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins 24 hours after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act and ends, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, 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 at which the Company is, or could be deemed is willing to be, in possession of material non-public information.
(m) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 and notified to the Manager in writing.
(n) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but in no event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) the foregoing limitation shall not apply to (A) exercise of any option, warrant, right each such Purchase Date or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, 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 formula pursuant to this Agreementwhich such lowest price shall be determined (each, a “Floor Price”).
Appears in 1 contract
Samples: Distribution Agency Agreement (Firstmerit Corp /Oh/)
Sale and Delivery of the Shares. On to the basis of the representations, warranties and agreements and subject Underwriters. ---------------------------------------------------
(a) Subject to the terms and conditions and upon the basis of the representations and warranties herein set forth hereinforth, the Company agrees to sell to the several Underwriters, and the Manager agree that each Underwriter agrees, severally and not jointly, to purchase from the Company may from time to time seek to sell the number of Firm Shares through set forth opposite such Underwriter's name on Schedule I hereto at a price per share of U.S.$_____________ (the Manager, as sales agent, or directly to the Manager, as principal, as follows:
(a) The Company may submit to the Manager its instruction to sell Shares on any trading day on the NYSE (a “Trading Day”) through placement instructions substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the Manager, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Manager. The Company shall have the right to amend at any time and from time to time any such prior instruction provided that the Manager is given reasonable notice of such amendment"Purchase Price").
(b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute 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.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company to the Manager with respect to such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares 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 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 3 of this Agreement (each, a “Placement”), it may notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(k) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein set forth, the Company hereby grants an option to the several Underwriters to purchase from the Company at the Purchase Price any or all of the Company herein contained Option Shares (the "Option"). The Option may be exercised only to cover over-allotments in connection with the distribution and shall sale of the Firm Shares by the Underwriters. The Option may be subject exercised in whole or in part at any time on or before the 45th day after the effective date of the Registration Statement upon written notice by the Representatives to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify Company setting forth the number of Option Shares as to which the several Underwriters are exercising the Option. Delivery of certificates for the Option Shares by the Company and payment therefor to the Company shall be made as provided in Section 3 hereof. The number of Option Shares to be purchased by each Underwriter shall be the same percentage of the total number of Option Shares to be purchased by the Manager pursuant theretoUnderwriters as such Underwriter is purchasing of the Firm Shares, subject to such readjustments as the price Representative in their absolute discretion shall make to be paid eliminate fractional shares. As Representatives of the several Underwriters, you may cancel the Option at any time by giving written notice of cancellation to the Company for such SharesCompany. If the Option is cancelled or expires unexercised in whole or in part, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date and place of delivery of and payment for such Shares.
(l) Subject to the limitations set forth herein and as may be mutually agreed upon by the parties hereto, sales pursuant to this Agreement and any Terms Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins 24 hours after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act and ends, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, no sales of Shares shall take place, and the Company shall promptly deregister under the Act the Option Shares not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public informationsold hereunder.
(m) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 and notified to the Manager in writing.
(n) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but in no event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) the foregoing limitation shall not apply to (A) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, 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.
Appears in 1 contract
Samples: Underwriting Agreement (Peace Arch Entertainment Group Inc)
Sale and Delivery of the Shares. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, acting as sales agent, or directly to the Manager, Manager acting as principal, as follows:
(a) The Company may submit to the Manager its instruction orders (including any price, time or size limits or other customary parameters and conditions) to sell Shares on any trading day on the NYSE Trading Day (a “Trading Day”) through placement instructions substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the Manager, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Managerdefined below). The Company shall have the right to amend at any time and from time to time any such prior instruction provided that If the Manager is given reasonable notice of such amendment.
(b) Subject agrees to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically proposed transaction or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act, if the Company and the Manager will mutually agree to compensation that is customary modified terms for the Manager with respect to such transactions.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such dayproposed transaction, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that then the Manager shall have given promptly send to the Company notice by the means set forth under Section 8 a Transaction Notice substantially in the form of Schedule C hereto, confirming the agreed terms of such designee prior to the Settlement Date) at The Depository Trust Company 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 Companyproposed transaction. If the Company or its transfer agent (if applicable) shall default on its obligation wishes such proposed transaction to deliver become a binding agreement between it and the Shares on any Settlement DateManager, the Company shall (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees promptly indicate its acceptance thereof by countersigning and expenses), as incurred, arising out of or in connection with returning such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company Transaction Notice to the Manager with respect to a written acceptance of such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance Transaction Notice by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as means set forth in under Section 3 8 hereof or by sending an email confirming acceptance of this Agreement such Transaction Notice (each, a “PlacementTime of Acceptance”); provided, it may notify that following such email confirming acceptance, the Company will also be obligated to promptly return the countersigned Transaction Notice to the Manager of by the proposed means set forth in Section 8 hereof for the parties’ records. The terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason reflected in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, a Transaction Notice shall become binding on the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms AgreementCompany, 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.
(k) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant theretothis Agreement, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date and place of delivery of and payment for such Shares.
(l) Subject to the limitations set forth herein and as may be mutually agreed upon by the parties hereto, sales pursuant to this Agreement and any Terms Agreement may not be requested only if accepted by the Company and need not be made by no later than the Manager except during the period that begins 24 hours after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act and endstimes, for all periodsspecified in such Transaction Notice. Each Transaction Notice shall specify, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or among other results of operations. Notwithstanding the foregoing, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information.
(m) 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 Sharesthings, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 and notified to the Manager in writing.following:
(n) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but in no event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) the foregoing limitation shall not apply Trading Day(s) on which the Shares subject to such transaction are intended to be sold (A) exercise of any optioneach, warrant, right or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, and “Purchase Date”);
(ii) the maximum number of Shares that the Company intends to sell on, or over the course of, such limitation Purchase Date(s); provided that the number of Shares sold on each such Purchase Date, when the Shares are sold through the Manager, acting as sales agent, shall not apply be no more than 25% of the average daily trading volume in the Common Shares for the 30 Trading Days preceding the date of delivery of the Transaction Notice or as otherwise agreed between the Company and the Manager; and
(iii) the lowest price, if any, at which the Company is willing to sell Shares on any day during which no sales are made each such Purchase Date or a formula pursuant to this Agreementwhich such lowest price shall be determined (each, a “Floor Price”).
Appears in 1 contract
Samples: Distribution Agency Agreement (Canadian Solar Inc.)
Sale and Delivery of the Shares. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, as sales agent, or directly to the Manager, as principal, as follows:
(a) The Company may submit to the Manager its instruction to sell Shares on any trading day on the NYSE (a “Trading Day”) through placement instructions substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the Manager, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Manager. The Company shall have the right to amend at any time and from time to time any such prior instruction provided that the Manager is given reasonable notice of such amendment.
(b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute 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.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company to the Manager with respect to such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares 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 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 3 of this Agreement (each, a “Placement”), it may notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(k) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the ------------------------------------------------------ basis of the representations and warranties of the Company herein contained and shall be contained, but subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify , the number Company, the MHC and the Bank hereby employ Trident as their agent to utilize its best efforts to assist with the sale of the Shares in the Offerings. In the event the Company is unable to be purchased by sell a minimum of 1,482,835 Shares (or such lesser number as the Manager pursuant theretoBanking Department may permit) within the period herein provided, this Agreement shall terminate, and the Company, the price MHC and the Bank shall refund promptly to be any persons who have subscribed for any Shares, the full amount which it may have received from them, together with interest as provided in the Plan, and no party to this Agreement shall have any obligation to the other party hereunder, except as set forth in Sections 6, 8, and 9 hereof. Appropriate arrangements for placing the funds received from subscriptions for Shares in interest-bearing accounts with the Bank until all Shares are sold and paid for were made prior to the commencement of the Offerings, with provision for prompt refund to the subscribers as set forth above, or for delivery to the Company if all Shares are sold. If all conditions precedent to the consummation of the Reorganization are satisfied, including the sale of all Shares required by the Plan to be sold, the Company agrees to issue or have issued such Shares and to release for delivery certificates to subscribers thereof for such SharesShares on or promptly after the Closing Date. Such release for delivery shall be against payment to the Company by any means authorized pursuant to the Prospectus, any provisions relating to rights of, and default by, underwriters acting together with at the Manager in the reoffering office of the SharesCompany at 000 Xxxx Xxxxxx, and the time and date and Xxxxxx, Xxx Xxxx 00000 or at such other place of delivery of and payment for such Shares.
(l) Subject to the limitations set forth herein and as may shall be mutually agreed upon by among the parties hereto. The date upon which Trident is paid the compensation due hereunder is herein called the "Closing Date." Trident may assemble and manage a selling group of broker-dealers, sales pursuant which are members of the NASD, to this Agreement and any Terms Agreement may not be requested by participate in the Company and need not be made by solicitation of orders for Common Stock in the Manager except during event of the period that begins 24 hours after the filing Syndicated Community Offering. In such event, Trident agrees either (a) upon receipt of an executed order form of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within subscriber to forward the period required by the Exchange Act and ends, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information.
(m) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales Common Stock ordered on or before twelve noon on the next business day following receipt or execution of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 an order form by the Company and notified Trident to the Manager Bank for deposit in writing.
a segregated account or (nb) The Company agrees that any offer to sell, any solicitation solicit indications of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but interest in no which event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) Trident will subsequently contact any potential subscriber indicating interest to confirm the foregoing limitation shall not apply interest and give instructions to (A) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, execute and return an order form or to a trustee or other person acquiring receive authorization to execute the order form on the subscribers behalf, (ii) Trident will mail acknowledgments of receipt of orders to each subscriber confirming interest on the business day following such securities for the confirmation, (iii) Trident will debit accounts of such personssubscribers on the third business day ("debit date") following receipt of the confirmation referred to in (i), and (iiiv) Trident will forward completed order forms together with such limitation funds to the Bank on or before twelve noon on the next business day following the debit date for deposit in a segregated account. Trident acknowledges that if the procedure in clause (b) is adopted, subscribers' funds are not required to be in their accounts until the debit date. In addition to the expenses specified in Section 6 hereof, Trident shall not apply on any day during which no sales are made pursuant to this Agreement.receive the following compensation for its services hereunder upon completion and closing of the Reorganization and the Offerings:
Appears in 1 contract
Sale and Delivery of the Shares. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, as sales agent, or directly to the Manager, as principal, as follows:
(a) The Company may submit to the Manager its instruction to sell Shares on any trading day on the NYSE (a “Trading Day”) through placement instructions substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the Manager, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Manager. The Company shall have the right to amend at any time and from time to time any such prior instruction provided that the Manager is given reasonable notice of such amendment.
(b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute 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.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company to the Manager with respect to such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares 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 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 3 of this Agreement (each, a “Placement”), it may notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(k) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be contained, but subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify , the number Company, MHC and the Bank hereby employ FBR as its agents to utilize their efforts in assisting the Company with the Company's sale of the Shares to be purchased by in the Manager pursuant thereto, Subscription Offering and Community Offering. In the price to be paid to event the Company for is unable to sell a minimum of 814,249 Shares (or such Shareslesser amount as the Department may permit) within the period herein provided, any provisions relating to rights ofthis Agreement shall terminate, and default bythe Company, underwriters acting together with MHC and the Manager in the reoffering Bank shall refund promptly to any persons who have subscribed for any of the Shares, the full amount which it may have received from them, together with interest as provided in the Prospectus, and no party to this Agreement shall have any obligation to the time other party hereunder, except as set forth in Sections 6, 8(a) and date 9 hereof. Appropriate arrangements for placing the funds received from subscriptions for Shares in special interest-bearing accounts with the Bank until all Shares are sold and place paid for were made prior to the commencement of the Subscription and Community Offering, with provision for prompt refund to the purchasers as set forth above, or for delivery to the Company if all Shares are sold. If all conditions precedent to the consummation of the Reorganization are satisfied, including the sale of all Shares required by the Plan to be sold, the Company agrees to issue or have issued such Shares and payment to release for delivery certificates to subscribers thereof for such Shares.
(l) Subject Shares on the Closing Date against payment to the limitations set forth herein and Company by any means authorized pursuant to the Prospectus, at the principal office of the Company at 000 Xxxx xxx Xxxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxx 00000 or at such other place as may shall be mutually agreed upon by between the parties hereto, sales pursuant to this Agreement and any Terms Agreement may not be requested by . The date upon which FBR is paid the Company and need not be made by compensation due hereunder is herein called the Manager except during the period that begins 24 hours after the filing "Closing Date." FBR agrees either (a) upon receipt of an executed order form of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within subscriber to forward the period required by the Exchange Act and ends, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information.
(m) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales Common Stock ordered on or before twelve noon on the next business day following receipt or execution of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 an order form by the Company and notified FBR to the Manager Bank for deposit in writing.
a segregated account or (nb) The Company agrees that any offer to sell, any solicitation solicit indications of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but interest in no which event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) FBR will subsequently contact any potential subscriber indicating interest to confirm the foregoing limitation shall not apply interest and give instructions to (A) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, execute and return an order form or to a trustee or other person acquiring receive authorization to execute the order form on the subscribers behalf, (ii) FBR will mail acknowledgments of receipt of orders to each subscriber confirming interest on the business day following such securities for the confirmation, (iii) FBR will debit accounts of such personssubscribers on the third business day ("debit date") following receipt of the confirmation referred to in M, and (iiiv) FBR will forward completed order forms together with such limitation funds to the Bank on or before twelve noon on the next business day following the debit date for deposit in a segregated account. FBR acknowledges that if the procedure in (b) is adopted, subscribers, funds are not required to be in their accounts until the debit date. In addition to the expenses specified in Section 6 hereof, FBR shall not apply on any day during which no sales are made pursuant to this Agreement.receive the following compensation for its services hereunder:
Appears in 1 contract
Sale and Delivery of the Shares. On the basis of the representations, warranties warranties, covenants and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, as sales agent, or directly to the Manager, as principal, as follows:
(a) The Company may submit to the Manager its instruction to sell Shares on any trading day on the NYSE (a “Trading Day”) through placement instructions substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the Manager, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Manager. The Company shall have the right to amend at any time and from time to time any such prior instruction provided that the Manager is given reasonable notice of such amendment.
(b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceedherein contained, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute 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.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company to the Manager with respect to such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares 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 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 3 of this Agreement (each, a “Placement”), it may notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(k) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify , the Company agrees to sell to the Underwriters and the Underwriters, severally and not jointly, agree to purchase from the Company, at a purchase price per share of $_______, the number of Firm Shares set forth opposite the respective names of the Underwriters in Schedule I hereto plus any additional number of Underwritten Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 9 hereof. Payment of the purchase price for, and delivery of certificates for, the Underwritten Shares shall be made at the office of Xxxxxx & Xxxxxxx, Chicago, Illinois or at such other place as shall be agreed upon by you and the Company, at 10:00 A.M. on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 9 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6- 1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than ten business days after such date as shall be agreed upon by you and the Company (such time and date of payment and delivery being herein called the "Closing Date"). Payment shall be made to the Company by wire transfer in same day funds, against delivery to you for the respective accounts of the Underwriters of certificates for the Underwritten Shares to be purchased by them. Certificates for the Manager pursuant theretoUnderwritten Shares shall be registered in such name or names and in such authorized denominations as you may request in writing at least two full business days prior to the Closing Date. The Company will permit you to examine and package such certificates for delivery at the offices of Xxxxxx & Xxxxxxx, Chicago, Illinois at least one full business day prior to the Closing Date. In addition, the Company hereby grants to the Underwriters the option to purchase up to ______ Additional Shares at the same purchase price per share to be paid by the Underwriters to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date and place of delivery of and payment for such Shares.
(l) Subject to the limitations Firm Shares as set forth herein and as may be mutually agreed upon by the parties hereto, sales pursuant to in this Agreement and any Terms Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins 24 hours after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act and endsSection 2, for all periods, two weeks before the filing sole purpose of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, no sales of Shares shall take place, and the Company shall not request covering over-allotments in the sale of Firm Shares by the Underwriters. This option may be exercised at any time, in whole or in part, on or before the thirtieth day following the date of the Prospectus, by written notice by you to the Company. Such notice shall set forth the aggregate number of Additional Shares that would be sold, as to which the option is being exercised and the Manager shall not date and time, as reasonably determined by you, when the Additional Shares are to be obligated delivered (such date and time being herein sometimes referred to sell, during any period in which as the Company is, or could be deemed to be, in possession of material non-public information.
(m) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 and notified to the Manager in writing.
(n) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but in no event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares"Additional Closing Date"); provided, however, that (i) the foregoing limitation Additional Closing Date shall not apply be earlier than the Closing Date or earlier than the second full business day after the date on which the option shall have been exercised nor later than the eighth full business day after the date on which the option shall have been exercised (unless such time and date are postponed in accordance with the provisions of Section 9 hereof). Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as you may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit you to examine and package such certificates for delivery at the offices of Xxxxxx & Xxxxxxx, Chicago, Illinois at least one full business day prior to the Additional Closing Date. The number of Additional Shares to be sold to each Underwriter shall be the number which bears the same ratio to the aggregate number of Additional Shares being purchased as the number of Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto (A) exercise of any option, warrant, right or any conversion privilege such number increased as set forth in Section 9 hereof) bears to [insert the instrument governing total number of Firm Shares being purchased from the Company], subject, however, to such security adjustments to eliminate any fractional shares as you in your sole discretion shall make. Payment for the Additional Shares shall be made to the Company by wire transfer in same day funds at the offices of Xxxxxx & Xxxxxxx, Chicago, Illinois or (B) sales solely to employees or security holders such other location as may be mutually acceptable, upon delivery of the Company or the Subsidiaries, or to a trustee or other person acquiring such securities certificates for the Additional Shares to you for the respective accounts of such persons, and (ii) such limitation shall not apply on any day during which no sales are made pursuant to this Agreementthe Underwriters.
Appears in 1 contract
Sale and Delivery of the Shares. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, as sales agent, or directly to the Manager, as principal, as follows:
(a) The Company may submit to the Manager its instruction to sell Shares on any trading day on the NYSE (a “Trading Day”) through placement instructions substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the Manager, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Manager. The Company shall have the right to amend at any time and from time to time any such prior instruction provided that the Manager is given reasonable notice of such amendment.
(b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute 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.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company to the Manager with respect to such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares as sales agent shall be subject to the continuing accuracy ------------------------------------------------------- of the representations and warranties of the Company hereinherein contained, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 3 of this Agreement (each, a “Placement”), it may notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(k) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be but subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify , the number Company and the Bank hereby employ Trident as their agent to utilize its best efforts in assisting the Company with the Company's sale of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering Subscription Offering and Community Offering. The employment of Trident hereunder shall terminate (a) forty-five (45) days after the SharesSubscription and Community Offering closes, and the time and date and place of delivery of and payment for such Shares.
(l) Subject to the limitations set forth herein and as may be mutually agreed upon by the parties hereto, sales pursuant to this Agreement and any Terms Agreement may not be requested by unless the Company and need not be made by the Manager except during Bank, with the approval of the OTS, are permitted to extend such period that begins 24 hours after of time, or (b) upon consummation of the filing Conversion, whichever date shall first occur. In the event the Company is unable to sell a minimum of a Quarterly Report on Form 10-Q 4,845,000 Shares (or an Annual Report on Form 10-K such lesser amount as of and the OTS may permit) within the period required by the Exchange Act and endsherein provided, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, no sales of Shares this Agreement shall take placeterminate, and the Company and the Bank shall not request refund promptly to any persons who have subscribed for any of the Prospectus, and no party to this Agreement shall have any obligation to the other party hereunder, except as set forth in Section 6, 8 and 9 hereof. Appropriate arrangements for placing the funds received from subscriptions for Shares in special interest- bearing accounts with the Bank until all Shares are sold and paid for were made prior to the commencement of the Subscription and Community Offering, with provision for prompt refund to the purchasers as set forth above, or for delivery to the Company if all Shares are sold. If all conditions precedent to the consummation of the Conversion are satisfied, including the sale of any all Shares that would required by the Plan to be sold, the Company agrees to issue or have issued such Shares and to release for delivery certificates to subscribers thereof for such Shares on the Manager Closing Date against payment to the Company by any means authorized pursuant to the Prospectus, at the principal office of the Company at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxx 00000 or at such other place as shall not be obligated to sell, during any period in agreed upon between the parties hereto. The date upon which the Company is, or could be deemed shall release the Shares sold in the Offerings in accordance with the terms hereof is herein called the "Closing Date." Trident agrees either (a) upon receipt of an executed order form of a subscriber to be, in possession of material non-public information.
(m) Under no circumstances shall forward the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales Common Stock ordered on or before twelve noon on the next business day following receipt or execution of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 an order form by the Company and notified Trident to the Manager Bank for deposit in writing.
a segregated account or (nb) The Company agrees that any offer to sell, any solicitation solicit indications of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but interest in no which event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) Trident will subsequently contact any potential subscriber indicating interest to confirm the foregoing limitation shall not apply interest and give instructions to (A) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, execute and return an order form or to a trustee or other person acquiring receive authorization to execute the order form on the subscriber's behalf, (ii) Trident will mail acknowledgments of receipt of orders to each subscriber confirming interest on the business day following such securities for the confirmation, (iii) Trident will debit accounts of such persons, subscribers on the fifth business day ("debit date") following receipt of the confirmation referred to in (i) and (iiiv) Trident will forward completed order forms together with such limitation funds to the Bank on or before twelve noon on the next business day following the debit date for deposit in a segregated account. Trident acknowledges that if the procedure in (b) is adopted, subscribers' funds are not required to be in their accounts until the debit date. In addition to the expenses specified in Section 6 hereof, Trident shall not apply on any day during which no sales are made pursuant to this Agreement.receive the following compensation for its services hereunder:
Appears in 1 contract
Sale and Delivery of the Shares. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, as sales agent, or directly to the Manager, as principal, as follows:
(a) The Company may submit to the Manager its instruction to sell Shares on any trading day on the NYSE (a “Trading Day”) through placement instructions substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the Manager, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Manager. The Company shall have the right to amend at any time and from time to time any such prior instruction provided that the Manager is given reasonable notice of such amendment.
(b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute 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.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company to the Manager with respect to such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares 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 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 3 of this Agreement (each, a “Placement”), it may notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(k) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be contained, but subject to the terms and conditions herein and therein set forth. Each Terms Agreement shall specify , the number Company, the MHC, and the Bank hereby employ Trident as their agent to utilize its best efforts to assist the Company with its sale of the Shares in the Offerings. In the event the Company is unable to be purchased by sell a minimum of 765,000 Shares (or such lesser amount as the Manager pursuant theretoDivision may permit) within the period herein provided, this Agreement shall terminate, and the Company, the price to be paid to the Company for such Shares, any provisions relating to rights ofMHC, and default by, underwriters acting together with the Manager in the reoffering Bank shall refund promptly to any persons who have subscribed for any of the Shares, the full amount which it may have received from them, together with interest as provided in the Plan, and no party to this Agreement shall have any obligation to the time other party hereunder, except as set forth in Sections 6, 8, and date 9 hereof. Appropriate arrangements for placing the funds received from subscriptions for Shares in interest-bearing accounts with the Bank until all Shares are sold and place paid for were made prior to the commencement of the Offerings, with provision for prompt refund to the purchasers as set forth above, or for delivery to the Company if all Shares are sold. If all conditions precedent to the consummation of the Reorganization are satisfied, including the sale of all Shares required by the Plan to be sold, the Company agrees to issue or have issued such Shares and payment to release for delivery certificates to subscribers thereof for such Shares.
Shares on or promptly after the Closing Date (l) Subject as hereinafter defined). Such release for delivery shall be against payment to the limitations set forth herein and Company by any means authorized pursuant to the Prospectus, at the office of the Company at 00 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 or at such other place as may shall be mutually agreed upon by among the parties hereto. The date upon which Trident is paid the compensation due hereunder is herein called the "Closing Date." Trident may assemble and manage a selling group of broker-dealers, sales pursuant which are members of the NASD, to this Agreement and any Terms Agreement may not be requested by participate in the Company and need not be made by solicitation of orders for Common Stock in the Manager except during event of the period that begins 24 hours after the filing Syndicated Community Offering. In such event, Trident agrees either (a) upon receipt of an executed order form of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within subscriber to forward the period required by the Exchange Act and ends, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell, during any period in which the Company is, or could be deemed to be, in possession of material non-public information.
(m) Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales Common Stock ordered on or before twelve noon on the next business day following receipt or execution of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 an order form by the Company and notified Trident to the Manager Bank for deposit in writing.
a segregated account or (nb) The Company agrees that any offer to sell, any solicitation solicit indications of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but interest in no which event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) Trident will subsequently contact any potential subscriber indicating interest to confirm the foregoing limitation shall not apply interest and give instructions to (A) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, execute and return an order form or to a trustee or other person acquiring receive authorization to execute the order form on the subscribers behalf, (ii) Trident will mail acknowledgments of receipt of orders to each subscriber confirming interest on the business day following such securities for the confirmation, (iii) Trident will debit accounts of such personssubscribers on the third business day ("debit date") following receipt of the confirmation referred to in (i), and (iiiv) Trident will forward completed order forms together with such limitation funds to the Bank on or before twelve noon on the next business day following the debit date for deposit in a segregated account. Trident acknowledges that if the procedure in clause (b) is adopted, subscribers' funds are not required to be in their accounts until the debit date. In addition to the expenses specified in Section 6 hereof, Trident shall not apply on any day during which no sales are made pursuant to this Agreement.receive the following compensation for its services hereunder upon completion and closing of the Reorganization and the Offerings:
Appears in 1 contract
Sale and Delivery of the Shares. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, as sales agent, or directly to the Manager, as principal, as follows:Underwriters. ---------------------------------------------------
(a) The Company may submit to the Manager its instruction to sell Shares on any trading day on the NYSE (a “Trading Day”) through placement instructions substantially in the form attached hereto as Schedule D. Instructions will be submitted by the Company and received by the Manager, initially by an authorized officer and person listed in Schedule E, or any substitute or additional officer and person as designated by the Company and notified in writing to the Manager. The Company shall have the right to amend at any time and from time to time any such prior instruction provided that the Manager is given reasonable notice of such amendment.
(b) Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell Shares with respect to which the Manager is acting as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling 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 such Shares as required under this Agreement and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company under a Terms Agreement. Sales of Shares, if any, through or to the Manager will be made by means of ordinary brokers’ transactions that meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act or otherwise agreed by the parties in other methods of sale.
(c) The Company shall neither (i) authorize the issuance and sale of, and the Manager shall not sell as sales agent, any Share at a price lower than the minimum price therefor designated from time to time by the Company and notified to the Manager in writing nor (ii) request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares. In addition, the Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares with respect to which the Manager is acting as sales agent; 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; and provided, further, that (i) any obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (ii) the notification obligation under Section 4(b), other than during the period in which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) shall be waived during the period of any such suspension.
(d) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(e) The compensation to the Manager for sales of Shares on any given day with respect to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed rate, which will not exceed, but may be lower than, 1.5% of the gross offering proceeds of the Shares sold pursuant to Section 3(a) hereof on such day. Any compensation or commission due and payable to the Manager shall be deducted by the Manager from the gross offering proceeds it receives from the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Manager for a sale of Shares that would constitute 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.
(f) Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through or to the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the gross proceeds (less commissions due to the Manager under (e) above) 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 Manager’s or its designee’s account (provided that the Manager shall have given the Company notice of such designee prior to the Settlement Date) at The Depository Trust Company 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 (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(g) If acting as sales agent hereunder, the Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day and the gross offering proceeds received from such sale and (ii) the commission payable by the Company to the Manager with respect to such sales.
(h) At each Applicable Time, on each Settlement Date, at each Representation Date and each date on which Shares are delivered to the Manager pursuant to a Terms Agreement, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares 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 5 of this Agreement.
(i) If the Company wishes to issue and sell the Shares other than as set forth in Section 3 of this Agreement (each, a “Placement”), it may notify the Manager of the proposed terms of such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(j) The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(k) Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of herein set forth, (i) the Company herein contained agrees to sell to the several Underwriters, at a price per share of $_____ (the "Purchase Price"), an aggregate of ________ Firm Shares, (ii) each Selling Shareholder agrees, severally and shall be not jointly, to sell to the several Underwriters, at the Purchase Price, the number of Firm Shares set forth opposite the name of such Selling Shareholder on Schedule I hereto and (iii) each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Shareholders, at the Purchase Price, the number of Firm Shares set forth opposite the name of such Underwriter in Schedule II hereto.
(b) In addition, subject to the terms and conditions and upon the basis of the representations and warranties herein and therein set forth. Each Terms Agreement shall specify , (i) the Company agrees to sell to the Underwriters, at the Purchase Price, up to __________ Option Shares, (ii) each Selling Shareholder agrees, severally and not jointly, to sell to the several Underwriters, at the Purchase Price, up to the number of Option Shares shown opposite such Selling Shareholder's name on Schedule II hereto, and (iii) the Underwriters shall have the right to purchase, severally and not jointly, from time to time for a period of 30 days from the date of the Prospectus, up to __________ Option Shares and an aggregate of up to ___________ Option Shares, respectively, from the Company and the Selling Shareholders at the Purchase Price. Option Shares may be purchased as provided in Section 4 hereof solely for the purpose of covering over-allotments made in connection with the offering of the Firm Shares. The underwriters shall not exercise the foregoing option granted by the Company unless and until they have first exercised in full the foregoing option granted by the Selling Shareholders. Subject to the foregoing sentence, if any Option Shares are to be purchased, each Underwriter, severally and not jointly, agrees to purchase from each Selling Shareholder in the proportion that the number of Option Shares set forth opposite such Selling Shareholder's name on Schedule II hereto bears to the total number of Option Shares to be purchased by pursuant to the Manager pursuant theretoexercise, the price aggregate number of Option Shares (subject to adjustments to eliminate fractional shares as you may determine) which bears the same proportion to the total number of Option Shares to be paid purchased from the Selling Shareholders as the number of Firm Shares set forth opposite the name of such Underwriter in Schedule II hereto bears to the Company for such total number of Firm Shares, . If any provisions relating Option Shares are to rights of, and default by, underwriters acting together with the Manager be purchased in the reoffering excess of the Shares, and aggregate Option Shares which the time and date and place of delivery of and payment for such Shares.
(l) Subject to the limitations set forth herein and as may be mutually Selling Shareholders have agreed upon by the parties hereto, sales pursuant to this Agreement and any Terms Agreement may not be requested by the Company and need not be made by the Manager except during the period that begins 24 hours after the filing of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K as of and within the period required by the Exchange Act and ends, for all periods, two weeks before the filing of the immediately succeeding press release or public announcement containing the Company’s earnings, revenues or other results of operations. Notwithstanding the foregoing, 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 each underwriter, severally and not jointly, agrees to purchase from the Company is, or could the aggregate number of Option Shares (subject to adjustments to eliminate fractional shares as you may determine) which bears the same proportion to the total number of Option Shares to be deemed to be, in possession of material non-public information.
(m) Under no circumstances shall purchased from the Company cause or request as the offer or sale number of any Shares, if after giving effect Firm Shares set forth opposite the name of such Underwriter in Schedule II bears to the sale total number of such Firm Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed, together with all sales of Shares under this Agreement, any Terms Agreement and the Alternative Distribution Agreements, the Maximum Amount. 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 and notified to the Manager in writing.
(n) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of the Manager or the Alternative Managers on any single given day, but in no event more than one, and the Company shall in no event request that the Manager sell Shares on any day that any Alternative Manager is also selling Shares; provided, however, that (i) the foregoing limitation shall not apply to (A) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (B) sales solely to employees or security holders of the Company or the Subsidiaries, 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.
Appears in 1 contract
Samples: Underwriting Agreement (Keystone Automotive Industries Inc)
