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Common use of Sale of Securities Clause in Contracts

Sale of Securities. (a) Subject to the provisions of Sections 2(b) and 6(a), the Sales Agent, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying that it relates to an “Issuance,” will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the compensation payable by the Company to the Sales Agent pursuant to Section 2(b) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent (as set forth in Section 6(b)) from the gross proceeds that it receives from such sales. (b) Subject to the provisions of Sections 2(b) and 6(d) and the Confirmation, the Forward Seller, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying that it relates to a “Forward,” will use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Securities up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation to the Company and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to the first Trading Day of the Forward Hedge Selling Period pursuant to the related Placement Notice (as amended by the corresponding Acceptance, if applicable), the Company shall execute and deliver a Confirmation to the Forward Purchaser related to such Placement. (d) Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock or to or through a market maker. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in privately negotiated transactions. (e) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, will be successful in selling Securities, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, will incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities for any reason other than a failure by the Sales Agent or the Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3. For the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on any single given day, but in no event by more than one, and the Company shall in no event request that the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same day.

Appears in 21 contracts

Samples: Equity Distribution Agreement (Rexford Industrial Realty, Inc.), Equity Distribution Agreement (Rexford Industrial Realty, Inc.), Equity Distribution Agreement (Rexford Industrial Realty, Inc.)

Sale of Securities. (a) Subject to the provisions of Sections 2(b) and 6(a), upon the Sales Agent, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to an “Issuance,” ), the Manager will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities at market prevailing prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent Manager will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the compensation payable by the Company to the Sales Agent Manager pursuant to this Section 2(b3(a) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent Manager (as set forth in Section 6(b)) from the gross proceeds that it receives from such sales. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as agent, in connection with the sale of the Securities shall be determined in accordance with the terms set forth in Exhibit C. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as principal, in connection with the sale of the Securities shall be as separately agreed among the parties hereto at the time of any such sales. (b) Subject to the provisions of Sections 2(b) and 6(d) and the Confirmation, the Forward Seller, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying that it relates to a “Forward,” will use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Securities up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation to the Company and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to the first Trading Day of the Forward Hedge Selling Period pursuant to the related Placement Notice (as amended by the corresponding Acceptance, if applicable), the Company shall execute and deliver a Confirmation to the Forward Purchaser related to such Placement. (d) Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of under the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock or to or through a market maker. Subject , or subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in to, privately negotiated transactions. (e) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, will be successful in selling Securities, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, will incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities for any reason other than a failure by the Sales Agent or the Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3. For the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on any single given day, but in no event by more than one, and the Company shall in no event request that the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same day.

Appears in 7 contracts

Samples: Equity Distribution Agreement (Agree Realty Corp), Equity Distribution Agreement (CTO Realty Growth, Inc.), Equity Distribution Agreement (Alpine Income Property Trust, Inc.)

Sale of Securities. (a) Subject to the provisions of Sections 2(b) and 6(a), the Sales Agent, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying that it relates to an “Issuance,” will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the compensation payable by the Company to the Sales Agent pursuant to Section 2(b) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent (as set forth in Section 6(b)) from the gross proceeds that it receives from such sales. (b) Subject to the provisions of Sections 2(b) and ), 6(d) and the Confirmation, the Forward Seller, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying that it relates to a “Forward,” will use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Securities up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation to the Company and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to the first Trading Day of the Forward Hedge Selling Period pursuant to the related Placement Notice (as amended by the corresponding Acceptance, if applicable), the Company shall execute and deliver a Confirmation to the Forward Purchaser related to such Placement. (d) Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock or to or through a market maker. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in privately negotiated transactions. (e) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, will be successful in selling Securities, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, will incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities for any reason other than a failure by the Sales Agent or the Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3. For the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on any single given day, but in no event by more than one, and the Company shall in no event request that the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same day.

Appears in 5 contracts

Samples: Equity Distribution Agreement (Rexford Industrial Realty, Inc.), Equity Distribution Agreement (Rexford Industrial Realty, Inc.), Equity Distribution Agreement (Rexford Industrial Realty, Inc.)

Sale of Securities. (a) Subject to the provisions of Sections 2(b) and 6(a), upon the Sales Agent, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to an “Issuance,” the Manager will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities at market prevailing prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent Manager will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the corresponding Aggregate Sales Price, the compensation payable by the Company to the Sales Agent Manager pursuant to this Section 2(b3(a) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent Manager (as set forth in Section 6(b)) from the gross proceeds that it receives from such sales. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as agent, in connection with the sale of the Issuance Securities shall be determined in accordance with the terms set forth in Exhibit C. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as principal, in connection with the sale of the Issuance Securities shall be as separately agreed among the parties hereto at the time of any such sales. (b) Subject to the provisions of Sections 2(b) and 3(b), 6(d) and the Master Forward Confirmation, upon the Forward Seller, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to a “Forward,” the Forward Purchaser will use commercially reasonable efforts to borrow, offer and sell Forward Hedge Securities through the Forward Seller to hedge the Forward, and the Forward Seller will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Securities at market prevailing prices up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation by email to all of the individuals from the Company set forth on Exhibit B (as such Exhibit B may be amended from time to time) and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to following the first last Trading Day of the each Forward Hedge Selling Period (or, if earlier, no later than the opening of the Trading Day immediately following the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 4 or the Forward Contract or this Agreement is terminated pursuant to Section 9 or Section 13 hereof), the Forward Purchaser shall execute and deliver to the Company a “Supplemental Confirmation” in respect of the Forward for such Forward Hedge Selling Period, which “Supplemental Confirmation” shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward, which number of days or months shall in no event be less than three months nor more than two years), the “Initial Forward Price” for such Forward, the “Spread” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the Company “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the “Maximum Stock Loan Rate” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the “Forward Price Reduction Dates” for such Forward (which shall execute and deliver a Confirmation to be each of the dates set forth below the caption “Forward Purchaser related to such Placement. (d) Subject to the terms of Price Reduction Dates” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the amount(s) set forth below the caption “Regular Dividend Amounts” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward). (d) Notwithstanding anything herein to the contrary, the Forward Purchaser’s obligation to use its commercially reasonable efforts to borrow all or any portion of the Forward Hedge Securities (and the Forward Seller’s obligation to use its commercially reasonable efforts to sell such portion of the Forward Hedge Securities) for any Forward hereunder shall be subject in all respects to the last paragraph of Section 3 of the Master Forward Confirmation. (e) The Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of under the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock or to or through a market maker. Subject , or subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in to, privately negotiated transactions. (e) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, will be successful in selling Securities, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, will incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities for any reason other than a failure by the Sales Agent or the Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3. For the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on any single given day, but in no event by more than one, and the Company shall in no event request that the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same day.

Appears in 5 contracts

Samples: Equity Distribution Agreement (Agree Realty Corp), Equity Distribution Agreement (Agree Realty Corp), Equity Distribution Agreement (Agree Realty Corp)

Sale of Securities. (a) Subject to the provisions of Sections 2(b) and 6(a), upon the Sales Agent, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to an “Issuance,” the Manager will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities at market prevailing prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent Manager will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the corresponding Aggregate Sales Price, the compensation payable by the Company to the Sales Agent Manager pursuant to this Section 2(b3(a) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent Manager (as set forth in Section 6(b)) from the gross proceeds that it receives from such sales. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as agent, in connection with the sale of the Issuance Securities shall be determined in accordance with the terms set forth in Exhibit C. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as principal, in connection with the sale of the Issuance Securities shall be as separately agreed among the parties hereto at the time of any such sales. (b) Subject to the provisions of Sections 2(b) and ), 6(d) and the Master Forward Confirmation, upon the Forward Seller, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to a “Forward,” the Forward Purchaser will use commercially reasonable efforts to borrow, offer and sell Forward Hedge Securities through the Forward Seller to hedge the Forward, and the Forward Seller will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Securities at market prevailing prices up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation by email to all of the individuals from the Company set forth on Exhibit B (as such Exhibit B may be amended from time to time) and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to following the first last Trading Day of the each Forward Hedge Selling Period (or, if earlier, no later than the opening of the Trading Day immediately following the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 4 or the Forward Contract or this Agreement is terminated pursuant to Section 9 or Section 13 hereof), the Forward Purchaser shall execute and deliver to the Company a “Supplemental Confirmation” in respect of the Forward for such Forward Hedge Selling Period, which “Supplemental Confirmation” shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward, which number of days or months shall in no event be less than three months nor more than two years), the “Initial Forward Price” for such Forward, the “Spread” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the Company “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the “Maximum Stock Loan Rate” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the “Forward Price Reduction Dates” for such Forward (which shall execute and deliver a Confirmation to be each of the dates set forth below the caption “Forward Purchaser related to such Placement. (d) Subject to the terms of Price Reduction Dates” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the amount(s) set forth below the caption “Regular Dividend Amounts” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward). (d) Notwithstanding anything herein to the contrary, the Forward Purchaser’s obligation to use its commercially reasonable efforts to borrow all or any portion of the Forward Hedge Securities (and the Forward Seller’s obligation to use its commercially reasonable efforts to sell such portion of the Forward Hedge Securities) for any Forward hereunder shall be subject in all respects to the last paragraph of Section 3 of the Master Forward Confirmation. (e) The Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of under the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock or to or through a market maker. Subject , or subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in to, privately negotiated transactions. (e) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, will be successful in selling Securities, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, will incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities for any reason other than a failure by the Sales Agent or the Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3. For the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on any single given day, but in no event by more than one, and the Company shall in no event request that the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same day.

Appears in 3 contracts

Samples: Equity Distribution Agreement (Alpine Income Property Trust, Inc.), Equity Distribution Agreement (CTO Realty Growth, Inc.), Equity Distribution Agreement (Alpine Income Property Trust, Inc.)

Sale of Securities. (a) Subject to the provisions of Sections 2(b) and 6(a), the each Sales Agent, for the period specified in the applicable Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to for an Issuance,” , will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the compensation payable by the Company to the such Sales Agent pursuant to Section 2(b) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the such Sales Agent (as set forth in Section 6(b)) from the gross proceeds that it receives from such sales. (b) Subject to the provisions of Sections 2(b) and 6(d) and the applicable Confirmation, the each Forward Seller, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to for a Forward,” , will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Securities up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable)amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation to the Company and to the Forward Purchaser no later than the opening of the Trading Day immediately following each the Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, Securities and the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereofPrice. (c) No later than the opening of the Trading Day immediately prior to the first Trading Day of the Forward Hedge Selling Period pursuant to the related Placement Notice (as amended by the corresponding Acceptance, if applicable), the Company shall execute and deliver a Confirmation to the Forward Purchaser related to such Placement. (d) Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the New York Stock Exchange (the “NYSE”), on any other existing trading market for the Common Stock Shares or to or through a market maker. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent Agents and the Forward Seller Sellers may also sell Placement Securities by any other method permitted by law, including but not limited to sales in privately negotiated transactions. For the purposes hereof, “Trading Day” means any day on which Common Shares are purchased and sold on the principal market on which the Common Shares are listed or quoted. (ed) Each of the Company and the Operating Partnership acknowledges and agrees that (i) there can be no assurance that the a Sales Agent or the a Forward Seller, as applicable, will be successful in selling Securities, and (ii) the a Sales Agent or the a Forward Seller and the Forward PurchaserSeller, as applicable, will incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities for any reason other than a failure by the such Sales Agent or the such Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3. For Each of the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased Company and sold on the principal market on which the Common Stock is listed or quoted. The Company Operating Partnership agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent, the Forward Seller, an Alternative one Sales Agent or an Alternative Forward Seller on any single given day, but in no event by more than one, and neither the Company nor the Operating Partnership shall in no event request that the Sales Agent, the Forward Seller, an Alternative a Sales Agent or an Alternative and a Forward Seller sell Securities on the same day.

Appears in 2 contracts

Samples: Equity Distribution Agreement (Federal Realty OP LP), Equity Distribution Agreement (Federal Realty OP LP)

Sale of Securities. (a) Subject to the provisions of Sections 2(b) and 6(a), upon the Sales Agent, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to an “Issuance,” the Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities at market prevailing prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the corresponding Aggregate Sales Price, the compensation payable by the Company to the Sales Agent pursuant to this Section 2(b3(a) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent (as amounts set forth in Section 6(b)) used to determine the amount of the Net Proceeds from the gross proceeds Gross Proceeds as defined in Section 6(b) that it the Agent receives from such sales. The amount of any commission, discount or other compensation to be paid by the Company to the Agent, when the Agent is acting as agent, in connection with the sale of the Issuance Securities shall be determined in accordance with the terms set forth in Exhibit D. The amount of any commission, discount or other compensation to be paid by the Company to the Agent, when the Agent is acting as principal, in connection with the sale of the Issuance Securities shall be as separately agreed among the parties hereto at the time of any such sales. (b) Subject to the provisions of Sections 2(b) and ), 6(d) and the Master Forward Confirmation, upon the Forward Seller, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to a “Forward,” the Forward Purchaser will use commercially reasonable efforts to borrow, offer and sell Forward Hedge Securities through the Forward Seller to hedge the Forward, and the Forward Seller will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Securities at market prevailing prices up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation by email to all of the individuals from the Company set forth on Exhibit C (as such Exhibit C may be amended from time to time) and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to following the first last Trading Day of the each Forward Hedge Selling Period (or, if earlier, no later than the opening of the Trading Day immediately following the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 4 or the Forward Contract or this Agreement is terminated pursuant to Section 9 or Section 13 hereof), the Forward Purchaser shall execute and deliver to the Company a “Supplemental Confirmation” in respect of the Forward for such Forward Hedge Selling Period, which “Supplemental Confirmation” shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward, which number of days or months shall in no event be less than three months nor more than two years), the “Initial Forward Price” for such Forward, the “Spread” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the Company “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the “Maximum Stock Loan Rate” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the “Forward Price Reduction Dates” for such Forward (which shall execute and deliver a Confirmation to be each of the dates set forth below the caption “Forward Purchaser related to such Placement. (d) Subject to the terms of Price Reduction Dates” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the amount(s) set forth below the caption “Regular Dividend Amounts” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward). (d) Notwithstanding anything herein to the contrary, the Forward Purchaser’s obligation to use its commercially reasonable efforts to borrow all or any portion of the Forward Hedge Securities (and the Forward Seller’s obligation to use its commercially reasonable efforts to sell such portion of the Forward Hedge Securities) for any Forward hereunder shall be subject in all respects to the last paragraph of Section 3 of the Master Forward Confirmation. (e) The Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of under the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock or to or through a market maker. Subject , or subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in to, privately negotiated transactions, which may include block trades. (e) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, will be successful in selling Securities, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, will incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities for any reason other than a failure by the Sales Agent or the Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3. For the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on any single given day, but in no event by more than one, and the Company shall in no event request that the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same day.

Appears in 2 contracts

Samples: Equity Distribution Agreement (STAG Industrial, Inc.), Equity Distribution Agreement (STAG Industrial, Inc.)

Sale of Securities. (a) Subject to the provisions of Sections 2(b) and 6(a)7(a) hereof, upon the Sales Agent, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to an “Issuance,” ), the Manager will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities at market prevailing prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent Manager will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the corresponding Aggregate Sales Price, the compensation payable by the Company to the Sales Agent Manager pursuant to this Section 2(b3(a) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent Manager (as set forth in Section 6(b)7(b) hereof) from the gross proceeds that it receives from such sales. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as agent, in connection with the sale of the Securities shall be determined in accordance with the terms set forth in Exhibit C hereto. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as principal, in connection with the sale of the Securities shall be as separately agreed among the parties hereto at the time of any such sales. (b) Subject to the provisions of Sections 2(b) and 6(d) and the Confirmation, the Forward Seller, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying that it relates to a “Forward,” will use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Securities up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation to the Company and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to the first Trading Day of the Forward Hedge Selling Period pursuant to the related Placement Notice (as amended by the corresponding Acceptance, if applicable), the Company shall execute and deliver a Confirmation to the Forward Purchaser related to such Placement. (d) Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act415, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock or to or through a market maker. Subject , or subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in to, privately negotiated transactions. (e) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, will be successful in selling Securities, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, will incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities for any reason other than a failure by the Sales Agent or the Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3. For the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on any single given day, but in no event by more than one, and the Company shall in no event request that the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same day.

Appears in 1 contract

Samples: Equity Distribution Agreement (Alpine Income Property Trust, Inc.)

Sale of Securities. (a) Subject to the provisions of Sections 2(b) and 6(a7(a), upon the Sales Agent, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to an “Issuance,” the Manager will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities at market prevailing prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent Manager will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the corresponding Aggregate Sales Price, the compensation payable by the Company to the Sales Agent Manager pursuant to this Section 2(b3(a) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent Manager (as set forth in Section 6(b7(b)) from the gross proceeds that it receives from such sales. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as agent, in connection with the sale of the Securities shall be determined in accordance with the terms set forth in Exhibit C. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as principal, in connection with the sale of the Securities shall be as separately agreed among the parties hereto at the time of any such sales. (b) Subject to the provisions of Sections 2(b) and 6(d) and the Confirmation, the Forward Seller, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying that it relates to a “Forward,” will use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Securities up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation to the Company and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to the first Trading Day of the Forward Hedge Selling Period pursuant to the related Placement Notice (as amended by the corresponding Acceptance, if applicable), the Company shall execute and deliver a Confirmation to the Forward Purchaser related to such Placement. (d) Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of under the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock Securities or to or through a market maker. Subject , or subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in to, privately negotiated transactions. (ec) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, will be successful in selling Securities, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, will incur no liability or obligation Notwithstanding anything to the Companycontrary herein, the Operating Partnership or any other person or entity if it does Manager shall not sell Securities for any reason other Series A Preferred Shares at a price higher than a failure by the Sales Agent or the Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3Series A Maximum Price. For the purposes hereof, the Trading DaySeries A Maximum Pricemeans any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to sellshall mean: (a) through July 24, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent2024, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on product of (i) $25.00 plus any single given dayaccrued and unpaid dividends per share to, but in no event by more than one, and the Company shall in no event request that the Sales Agentexcluding, the Forward Sellerdate of sale and (ii) the sum of (A) 1.0 and (B) (x) the number of complete years until July 24, an Alternative Sales Agent or an Alternative Forward Seller sell Securities 2025 remaining at the date of sale multiplied by (y) 0.0025; and (b) on July 25, 2024 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the same daydate of sale.

Appears in 1 contract

Samples: Equity Distribution Agreement (NexPoint Real Estate Finance, Inc.)

Sale of Securities. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, (x) the Company and the Managers agree that the Company may from time to time issue and sell Shares through the applicable Manager, acting as sales agent (any such sale, a “Direct Sale”) or (y) the Company may from time to time, in consultation with the Forward Purchasers and the Forward Sellers, instruct Forward Hedge Shares to be sold through the applicable Manager, acting as a forward seller (any such sale, a “Forward Sale”). (a) Subject to If the provisions of Sections 2(b) and 6(a), the Sales Agent, for the period specified in the Placement Notice (as amended by the corresponding AcceptanceCompany wishes that a Manager or a Forward Seller, as applicable, sell Shares, then it shall instruct such Manager or such Forward Seller, as applicable, by email (including any price, time or size limits or other customary parameters or conditions) specifying that it relates to an “Issuance,” will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) Shares on the any Trading Day (as defined below) immediately following using a form substantially similar to that attached hereto as Exhibit A (the Trading Day on which it has made “Transaction Confirmation”). Such Transaction Confirmation shall also (i) specify whether such Shares will be sold through the applicable Manager, acting as sales of Issuance Securities hereunder setting forth agent in a Direct Sale, or through the number of Issuance Securities sold on applicable Forward Seller in connection with a Forward Sale and (ii) if such day, the compensation payable by the Company to the Sales Agent pursuant to Section 2(b) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent (as set forth in Section 6(b)) from the gross proceeds that it receives from such sales. (b) Subject to the provisions of Sections 2(b) and 6(d) and the Confirmation, the Forward Seller, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying Transaction Confirmation specifies that it relates to a “Forward,” will use commercially reasonable efforts consistent Forward Sale, be accompanied by a duly executed Supplemental Confirmation, with its normal trading and sales practices terms corresponding to sell such Forward Hedge Securities up to the Forward Hedge Amount specified in Sale. If such Placement Notice (as amended by the corresponding AcceptanceManager, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation to the Company and to the or Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to the first Trading Day of the Forward Hedge Selling Period pursuant to the related Placement Notice (as amended by the corresponding Acceptance, if applicable), the Company shall execute and deliver a Confirmation to the Forward Purchaser related to such Placement. (d) Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock or to or through a market maker. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in privately negotiated transactions. (e) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward SellerPurchaser, as applicable, will be successful wishes to accept the proposed terms included in selling Securitiesthe Transaction Confirmation and, and if applicable, Supplemental Confirmation (iiwhich they may decline to do for any reason in their sole discretion) or, following discussion with the Sales Agent or the Company, wishes to accept amended terms, then such Manager, Forward Seller and the or Forward Purchaser, as applicable, will incur no liability or obligation issue to the Company, the Operating Partnership Company a notice by email (or any other person or entity if it does not sell Securities for any reason other than a failure method mutually agreed to in writing by the Sales Agent parties hereto) setting forth the terms that such Manager or the such Forward SellerSeller and Forward Purchaser, as applicable, is willing to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell accept. Where the terms provided in the Transaction Confirmation and, if applicable, Supplemental Confirmation, are amended as provided for in the immediately preceding sentence, such Securities as required under this Section 3. For the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased and sold terms will not be binding on the principal market on which the Common Stock is listed Company, such Manager or quoted. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative such Forward Seller on any single given dayand Forward Purchaser, but in no event by more than oneas applicable, and until the Company shall confirms its acceptance of all of the terms of such Transaction Confirmation, as amended, by email or telephone, with confirmation to be provided promptly thereafter by email (or other method mutually agreed to in no event request that writing by the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same day.parties hereto),

Appears in 1 contract

Samples: Equity Distribution Agreement (Idaho Power Co)

Sale of Securities. (a) Subject to the provisions of Sections 2(b) and 6(a7(a), upon the Sales Agent, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to an “Issuance,” the Manager will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities at market prevailing prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent Manager will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the corresponding Aggregate Sales Price, the compensation payable by the Company to the Sales Agent Manager pursuant to this Section 2(b3(a) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent Manager (as set forth in Section 6(b7(b)) from the gross proceeds that it receives from such sales. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as agent, in connection with the sale of the Issuance Securities shall be determined in accordance with the terms set forth in Exhibit C. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as principal, in connection with the sale of the Issuance Securities shall be as separately agreed among the parties hereto at the time of any such sales. (b) Subject to the provisions of Sections 2(b) and 6(d3(b), 7(d) and the Master Forward Confirmation, upon the Forward Seller, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to a “Forward,” the Forward Purchaser will use commercially reasonable efforts to borrow, offer and sell Forward Hedge Securities through the Forward Seller to hedge the Forward, and the Forward Seller will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Securities at market prevailing prices up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation by email to all of the individuals from the Company set forth on Exhibit B (as such Exhibit B may be amended from time to time) and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the second Trading Day immediately following the last Trading Day of each Forward Hedge Selling Period (or, if earlier, no later than the opening of the Trading Day immediately prior to following the first Trading Day of the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 4 or the Forward Contract or this Agreement is terminated pursuant to Section 10 or Section 14 hereof), the Forward Purchaser shall execute and deliver to the Company a “Supplemental Confirmation” in respect of the Forward for such Forward Hedge Selling Period, which “Supplemental Confirmation” shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward, which number of days or months shall in no event be less than three months nor more than two years), the “Initial Forward Price” for such Forward, the “Spread” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the Company “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the “Maximum Stock Loan Rate” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the “Forward Price Reduction Dates” for such Forward (which shall execute and deliver a Confirmation to be each of the dates set forth below the caption “Forward Purchaser related to such Placement. (d) Subject to the terms of Price Reduction Dates” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the amount(s) set forth below the caption “Regular Dividend Amounts” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward). (d) Notwithstanding anything herein to the contrary, the Forward Purchaser’s obligation to use its commercially reasonable efforts to borrow all or any portion of the Forward Hedge Securities (and the Forward Seller’s obligation to use its commercially reasonable efforts to sell such portion of the Forward Hedge Securities) for any Forward hereunder shall be subject in all respects to the last paragraph of Section 3 of the Master Forward Confirmation. (e) The Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of under the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock or to or through a market maker. Subject , or subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in to, privately negotiated transactions. (e) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, will be successful in selling Securities, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, will incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities for any reason other than a failure by the Sales Agent or the Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3. For the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on any single given day, but in no event by more than one, and the Company shall in no event request that the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same day.

Appears in 1 contract

Samples: Equity Distribution Agreement (NexPoint Residential Trust, Inc.)

Sale of Securities. In reliance upon the representations, warranties and agreements herein contained, and subject to the terms and conditions herein set forth, the Partnership Parties and each Manager agree that the Partnership may from time to time seek to sell Units through a Manager, acting as sales agent as follows: (a) Subject The Units are to be sold by one of the provisions of Sections 2(bManagers as shall be agreed to by the Partnership and such Manager on any day that (A) and 6(ais 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) (a “Trading Day”), (B) the Sales AgentPartnership has delivered a Placement Instruction in the form set forth in Schedule I hereto, and (C) the Partnership has satisfied its obligations under Section 6 of this Agreement. The Placement Instruction from the Partnership will designate (and such Manager shall confirm promptly by email) (i) the maximum aggregate gross price of the Units to be sold by such Manager as agreed to by such Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement), (ii) the minimum price per Unit at which such Units may be sold, (iii) the date(s) on which Units may be sold and (iv) such other terms or conditions as agreed to by the Partnership and such Manager. The gross sales price of the Units sold under this Section 2(a) shall be the market price for the period specified in the Placement Notice (as amended Units sold by the corresponding Acceptance, as applicable) specifying that it relates to an “Issuance,” will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent will provide written confirmation to the Company no later than 8:30 a.m. (New York City timeManager under this Section 2(a) on the Trading Day (as defined below) immediately following NYSE at the Trading Day on which it has made sales time of Issuance Securities hereunder setting forth the number sale of Issuance Securities sold on such day, the compensation payable by the Company to the Sales Agent pursuant to Section 2(b) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent (as set forth in Section 6(b)) from the gross proceeds that it receives from such salesUnits. (b) Subject to the provisions of Sections 2(b) terms and 6(d) and the Confirmationconditions hereof, the Forward Seller, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying that it relates to a “Forward,” will applicable Manager shall use its commercially reasonable efforts consistent with its normal trading and sales practices to execute any Placement Instruction submitted to it hereunder to sell Forward Hedge Securities up to the Forward Hedge Amount specified in such Placement Notice Units (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation to the Company and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to the first Trading Day of the Forward Hedge Selling Period pursuant to the related Placement Notice (as amended parameters and conditions designated by the corresponding AcceptancePartnership pursuant to Section 2(a) above) and with respect to which such Manager has agreed to act as sales agent. For the avoidance of doubt, the Partnership shall submit instructions to sell Units to only one Manager, if applicable), the Company shall execute and deliver a Confirmation to the Forward Purchaser related to such Placement. (d) Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NYSEany, on any other existing trading market for the Common Stock or to or through a market makersingle Trading Day. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in privately negotiated transactions. (e) Each of the Company and Operating The Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, such Manager will be successful in selling Securitiesthe Units, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, such Manager will incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities Units for any reason other than a failure by the Sales Agent or the Forward Seller, as applicable, such Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Securities Units as required under this Section 3. For Agreement and (iii) such Manager shall be under no obligation to purchase Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by such Manager and the purposes hereofPartnership in writing pursuant to a Terms Agreement. (c) The Partnership shall not authorize the issuance and sale of, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to applicable Manager shall not sell, any solicitation Unit at a price lower than the minimum price therefor designated by the Partnership pursuant to Section 2(a) above. In addition, the Partnership or the Managers may, upon notice to the other parties hereto by telephone (confirmed promptly by email or facsimile) or by email or facsimile, suspend or terminate an offering of an offer the Units pursuant to buythis Agreement; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Units sold hereunder prior to the giving of such notice. During any such period of suspension, the Partnership shall not be obligated to deliver (or cause to be delivered) any of the documents referred to in Section 6(b), Section 6(c), Section 6(d), Section 6(e), Section 6(f), Section 6(g), Section 6(h) or Section 6(i), be deemed to affirm any of the representations or warranties contained in this Agreement pursuant to Section 2(f) hereof, or be obligated to conduct any sales due diligence session as referred to in Section 5(aa) until the termination of Securities the suspension and the recommencement of the offering of the Units pursuant to this Agreement (which recommencement shall constitute a Representation Date (as defined below)). For the avoidance of doubt, any period during which the Partnership has not provided instructions with respect to the sale of Units pursuant to Section 2(a) hereof, or any period during which such instruction provided thereunder has been properly revoked by the Partnership, shall not be deemed a suspension of the program under this Agreement. (d) The applicable Manager shall provide written confirmation (which may be by facsimile or email) to the Partnership following the close of trading on the NYSE each day on which Units are sold by such Manager under this Agreement setting forth (i) the aggregate number of Units sold on such day, (ii) the aggregate gross offering proceeds from such sales and the Alternative Distribution Agreements aggregate net offering proceeds to the Partnership received from such sales and (iii) the commission or other compensation payable by the Partnership to such Manager with respect to such sales. (e) Subject to the terms of any Terms Agreement, the Units may be offered and sold (x)(i) by means of ordinary brokers’ transactions that qualify for delivery of a Prospectus in accordance with Rule 153 of the 1933 Act and meet the definition of an “at the market offering” under Rule 415(a)(4) of the 1933 Act, including without limitation sales made directly on the NYSE, (ii) to or through a market maker, or (iii) directly on or through an electronic communication network, a “dark pool” or any similar market venue and (y) by any Manager on behalf of the Partnership in its capacity as agent of the Partnership as shall be effected permitted by law and agreed to by the Partnership and such Manager in writing, including but not limited to in any Terms Agreement or through only the Sales Agentother privately negotiated transaction. (f) At each Applicable Time, Settlement Date and Representation Date, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on any single given dayPartnership Parties shall be deemed to have affirmed each representation and warranty contained in this Agreement as if such representation and warranty were made as of such date (unless such representation and warranty is only made as of the date of this Agreement), but modified to incorporate the disclosures contained in no event the Registration Statement and the Prospectus, in each case as amended or supplemented as of such date. Any obligation of the applicable Manager to use its commercially reasonable efforts to sell the Units on behalf of the Partnership as sales agent shall be subject to the continuing accuracy of the representations and warranties (as modified in the manner described above) of the Partnership herein, to the performance by more than onethe Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (g) If any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 1934 Act are not satisfied with respect to the Units, it shall promptly notify the other parties and sales of the Units 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. (h) Subject to such further limitations on offers and sales of the Units or delivery of instructions to offer and sell the Units as are set forth herein and as may be mutually agreed upon by the Partnership and any Manager, the Partnership shall not request the sale of any Units that would be sold, and no Manager shall be obligated to sell during any period in which the Company shall Partnership Parties are, or could be deemed to be, in no possession of material non-public information. (i) If the Partnership wishes to issue and sell the Units pursuant to this Agreement but other than as set forth in Section 2(a) through Section 2(h) of this Agreement (each, a “Placement”), it will notify a Manager of the proposed terms of such Placement. If such Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Partnership, wishes to accept amended terms, such Manager and the Partnership will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Partnership or such Manager unless and until the Partnership and such Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event request that of a conflict between the Sales Agentterms of this Agreement and the terms of a Terms Agreement, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same dayterms of such Terms Agreement will control.

Appears in 1 contract

Samples: Equity Distribution Agreement (NextEra Energy Partners, LP)

Sale of Securities. (a) Subject to the provisions of Sections 2(b) and 6(a7(a), upon the Sales Agent, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to an “Issuance,” the Manager will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities at market prevailing prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent Manager will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the corresponding Aggregate Sales Price, the compensation payable by the Company to the Sales Agent Manager pursuant to this Section 2(b3(a) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent Manager (as set forth in Section 6(b7(b)) from the gross proceeds that it receives from such sales. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as agent, in connection with the sale of the Securities shall be determined in accordance with the terms set forth in Exhibit C. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as principal, in connection with the sale of the Securities shall be as separately agreed among the parties hereto at the time of any such sales. (b) Subject to the provisions of Sections 2(b) and 6(d) and the Confirmation, the Forward Seller, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying that it relates to a “Forward,” will use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Securities up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation to the Company and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to the first Trading Day of the Forward Hedge Selling Period pursuant to the related Placement Notice (as amended by the corresponding Acceptance, if applicable), the Company shall execute and deliver a Confirmation to the Forward Purchaser related to such Placement. (d) Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of under the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock Securities or to or through a market maker. Subject , or subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in to, privately negotiated transactions. (ec) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, will be successful in selling Securities, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, will incur no liability or obligation Notwithstanding anything to the Companycontrary herein, the Operating Partnership or any other person or entity if it does Manager shall not sell Securities for any reason other shares of Series A Preferred Stock at a price higher than a failure by the Sales Agent or the Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3Series A Maximum Price. For the purposes hereof, the Trading DaySeries A Maximum Pricemeans any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to sellshall mean: (a) through July 24, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent2024, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on product of (i) $25.00 plus any single given dayaccrued and unpaid dividends per share to, but in no event by more than one, and the Company shall in no event request that the Sales Agentexcluding, the Forward Sellerdate of sale and (ii) the sum of (A) 1.0 and (B) (x) the number of complete years until July 24, an Alternative Sales Agent or an Alternative Forward Seller sell Securities 2025 remaining at the date of sale multiplied by (y) 0.0025; and (b) on July 25, 2024 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the same daydate of sale.

Appears in 1 contract

Samples: Equity Distribution Agreement (NexPoint Real Estate Finance, Inc.)

Sale of Securities. (a) Subject On the basis of the representations, warranties and agreements herein contained, but subject to the provisions of Sections 2(bterms and conditions herein set forth, (x) the Company and 6(a)the Manager agree that the Company may from time to time issue and sell Shares through the Manager, acting as sales agent (any such sale, a “Direct Sale”) or (y) the Sales AgentCompany may from time to time, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying that it relates to an “Issuance,” will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities up to the amount specified, and otherwise in accordance consultation with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the compensation payable by the Company to the Sales Agent pursuant to Section 2(b) with respect to such sales, Forward Purchaser and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent (as set forth in Section 6(b)) from the gross proceeds that it receives from such sales. (b) Subject to the provisions of Sections 2(b) and 6(d) and the Confirmation, the Forward Seller, for instruct Forward Hedge Shares to be sold through the period specified in the Placement Notice Manager, acting as forward seller (as amended by the corresponding Acceptanceany such sale, as applicable) specifying that it relates to a “Forward,” will use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Securities up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicableSale”), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation to the Company and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (ca) No later than the opening of the Trading Day immediately prior to the first Trading Day of the Forward Hedge Selling Period pursuant to the related Placement Notice (as amended by the corresponding Acceptance, if applicable), If the Company shall execute and deliver a Confirmation to the Forward Purchaser related to such Placement. (d) Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock or to or through a market maker. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in privately negotiated transactions. (e) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance wishes that the Sales Agent Manager or the Forward Seller, as applicable, will be successful in selling Securitiessell Shares, and (ii) then it shall instruct the Sales Agent Manager or the Forward Seller, as applicable, by telephone or email (including any price, time or size limits or other customary parameters or conditions) to sell such Shares on any Trading Day (as defined below) by email using a form substantially similar to that attached hereto as Exhibit A (the “Transaction Confirmation”). Such Transaction Confirmation shall also specify whether such Shares will be sold through the Manager, acting as sales agent in a Direct Sale, or through the Forward Seller and in connection with a Forward Sale. If the Manager, the Forward Seller or the Forward Purchaser, as applicable, wishes to accept the proposed terms included in the Transaction Confirmation (which they may decline to do for any reason in their sole discretion) or, following discussion with the Company, wishes to accept amended terms, then the Manager, the Forward Seller or the Forward Purchaser, as applicable, will incur no liability or obligation issue to the Company, the Operating Partnership Company a notice by email (or any other person or entity if it does not sell Securities for any reason other than a failure method mutually agreed to in writing by the Sales Agent or parties hereto) setting forth the Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3. For terms that the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales AgentManager, the Forward Seller, an Alternative Sales Agent or an Alternative Seller and Forward Seller on any single given day, but Purchaser are willing to accept. Where the terms provided in no event by more than one, and the Company shall Transaction Confirmation are amended as provided for in no event request that the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same day.the

Appears in 1 contract

Samples: Equity Distribution Agreement (Nisource Inc.)

Sale of Securities. (a) Subject to the provisions of Sections 2(b) and 6(a7(a), upon the Sales Agent, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to an “Issuance,” the Manager will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities at market prevailing prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent Manager will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the corresponding Aggregate Sales Price, the compensation payable by the Company to the Sales Agent Manager pursuant to this Section 2(b3(a) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent Manager (as set forth in Section 6(b7(b)) from the gross proceeds that it receives from such sales. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as agent, in connection with the sale of the Issuance Securities shall be determined in accordance with the terms set forth in Exhibit C. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as principal, in connection with the sale of the Issuance Securities shall be as separately agreed among the parties hereto at the time of any such sales. (b) Subject to the provisions of Sections 2(b) and 6(d3(b), 7(d) and the Master Forward Confirmation, upon the Forward Seller, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to a “Forward,” the Forward Purchaser will use commercially reasonable efforts to borrow, offer and sell Forward Hedge Securities through the Forward Seller to hedge the Forward, and the Forward Seller will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Securities at market prevailing prices up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation by email to all of the individuals from the Company set forth on Exhibit B (as such Exhibit B may be amended from time to time) and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to following the first last Trading Day of the each Forward Hedge Selling Period (or, if earlier, no later than the opening of the Trading Day immediately following the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 4 or the Forward Contract or this Agreement is terminated pursuant to Section 10 or Section 14 hereof), the Forward Purchaser shall execute and deliver to the Company a “Supplemental Confirmation” in respect of the Forward for such Forward Hedge Selling Period, which “Supplemental Confirmation” shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward, which number of days or months shall in no event be less than three months nor more than two years), the “Initial Forward Price” for such Forward, the “Spread” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the Company “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the “Maximum Stock Loan Rate” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the “Forward Price Reduction Dates” for such Forward (which shall execute and deliver a Confirmation to be each of the dates set forth below the caption “Forward Purchaser related to such Placement. (d) Subject to the terms of Price Reduction Dates” in the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market ) for the Common Stock or to or through a market maker. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent such Forward) and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited Price Reduction Amounts” corresponding to in privately negotiated transactions. such Forward Price Reduction Dates (e) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, will be successful in selling Securities, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, will incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities for any reason other than a failure by the Sales Agent or the Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3. For the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on any single given day, but in no event by more than one, and the Company shall in no event request that the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same day.each amount set forth opposite each

Appears in 1 contract

Samples: Equity Distribution Agreement (NexPoint Residential Trust, Inc.)

Sale of Securities. (a) Subject to the provisions of Sections 2(b) and 6(a), upon the Sales Agent, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to an “Issuance,” ), the Manager will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities at market prevailing prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent Manager will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the compensation payable by the Company to the Sales Agent Manager pursuant to this Section 2(b3(a) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent Manager (as set forth in Section 6(b)) from the gross proceeds that it receives from such sales. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as agent, in connection with the sale of the Securities shall be determined in accordance with the terms set forth in Exhibit C. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as principal, in connection with the sale of the Securities shall be as separately agreed among the parties hereto at the time of any such sales. (b) Subject to the provisions of Sections 2(b) and 6(d) and the Confirmation, the Forward Seller, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying that it relates to a “Forward,” will use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Securities up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation to the Company and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to the first Trading Day of the Forward Hedge Selling Period pursuant to the related Placement Notice (as amended by the corresponding Acceptance, if applicable), the Company shall execute and deliver a Confirmation to the Forward Purchaser related to such Placement. (d) Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act415, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Series A Preferred Stock or to or through a market maker. Subject , or subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in to, privately negotiated transactions. (ec) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, will be successful in selling Securities, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, will incur no liability or obligation Notwithstanding anything to the Companycontrary herein, the Operating Partnership or any other person or entity if it does Manager shall not sell Securities for any reason other Series A Preferred Stock at a price higher than a failure by the Sales Agent or the Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3Series A Maximum Price. For the purposes hereof, the Trading DaySeries A Maximum Pricemeans any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to sellshall mean: (a) through July 6, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent2025, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on product of (i) $25.00 plus any single given dayaccrued and unpaid dividends per share to, but in no event by more than one, and the Company shall in no event request that the Sales Agentexcluding, the Forward Sellerdate of sale and (ii) the sum of (A) 1.0 and (B) (x) the number of complete years until July 6, an Alternative Sales Agent or an Alternative Forward Seller sell Securities 2026 remaining at the date of sale multiplied by (y) 0.0025; and (b) on July 7, 2025 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the same daydate of sale.

Appears in 1 contract

Samples: Equity Distribution Agreement (CTO Realty Growth, Inc.)

Sale of Securities. (a) Subject to the provisions of Sections 2(b) and 6(a)) hereof, upon the Sales Agent, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to an “Issuance,” ), the Manager will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities at market prevailing prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent Manager will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the corresponding Aggregate Sales Price, the compensation payable by the Company to the Sales Agent Manager pursuant to this Section 2(b3(a) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent Manager (as set forth in Section 6(b)) hereof) from the gross proceeds that it receives from such sales. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as agent, in connection with the sale of the Securities shall be determined in accordance with the terms set forth in Exhibit D hereto. The amount of any commission, discount or other compensation to be paid by the Company to the Manager, when the Manager is acting as principal, in connection with the sale of the Securities shall be as separately agreed among the parties hereto at the time of any such sales. (b) Subject to the provisions of Sections 2(b) and 6(d) and the Confirmation, the Forward Seller, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying that it relates to a “Forward,” will use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Securities up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation to the Company and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to the first Trading Day of the Forward Hedge Selling Period pursuant to the related Placement Notice (as amended by the corresponding Acceptance, if applicable), the Company shall execute and deliver a Confirmation to the Forward Purchaser related to such Placement. (d) Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act415, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock or to or through a market maker. Subject , or subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in to, privately negotiated transactions. (e) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, will be successful in selling Securities, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, will incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities for any reason other than a failure by the Sales Agent or the Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3. For the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on any single given day, but in no event by more than one, and the Company shall in no event request that the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same day.

Appears in 1 contract

Samples: Equity Distribution Agreement (CTO Realty Growth, Inc.)

Sale of Securities. (a) Subject to the provisions of Sections 2(b) and 6(a), the each Sales Agent, for the period specified in the applicable Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to for an Issuance,” , will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the compensation payable by the Company to the such Sales Agent pursuant to Section 2(b) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the such Sales Agent (as set forth in Section 6(b)) from the gross proceeds that it receives from such sales. (b) Subject to the provisions of Sections 2(b) and 6(d) and the applicable Confirmation, the each Forward Seller, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to for a Forward,” , will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Securities up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable)amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation to the Company and to the Forward Purchaser no later than the opening of the Trading Day immediately following each the Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, Securities and the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereofPrice. (c) No later than the opening of the Trading Day immediately prior to the first Trading Day of the Forward Hedge Selling Period pursuant to the related Placement Notice (as amended by the corresponding Acceptance, if applicable), the Company shall execute and deliver a Confirmation to the Forward Purchaser related to such Placement. (d) Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the New York Stock Exchange (the “NYSE”), on any other existing trading market for the Common Stock Shares or to or through a market maker. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent Agents and the Forward Seller Sellers may also sell Placement Securities by any other method permitted by law, including but not limited to sales in privately negotiated transactions. For the purposes hereof, “Trading Day” means any day on which Common Shares are purchased and sold on the principal market on which the Common Shares are listed or quoted. (ed) Each of the The Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the a Sales Agent or the a Forward Seller, as applicable, will be successful in selling Securities, and (ii) the a Sales Agent or the a Forward Seller and the Forward PurchaserSeller, as applicable, will incur no liability or obligation to the Company, the Operating Partnership Company or any other person or entity if it does not sell Securities for any reason other than a failure by the such Sales Agent or the such Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3. For the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent, the Forward Seller, an Alternative one Sales Agent or an Alternative Forward Seller on any single given day, but in no event by more than one, and the Company shall in no event request that the Sales Agent, the Forward Seller, an Alternative a Sales Agent or an Alternative and a Forward Seller sell Securities on the same day.

Appears in 1 contract

Samples: Equity Distribution Agreement (Federal Realty Investment Trust)

Sale of Securities. In reliance upon the representations, warranties and agreements herein contained, and subject to the terms and conditions herein set forth, the Partnership and each Manager agree that the Partnership may from time to time seek to sell Units through a Manager, acting as sales agent (except with respect to Section 2(i)), as follows: (a) Subject The Units are to be sold by one of the provisions of Sections 2(bManagers as shall be agreed to by the Partnership and such Manager on any day that (A) and 6(ais 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) (a “Trading Day”), (B) the Sales AgentPartnership has delivered a placement instruction (a “Placement Instruction”) in the form set forth in Schedule H hereto, and (C) the Partnership has satisfied its obligations under Section 6 of this Agreement. The Placement Instruction from the Partnership will designate (and such Manager shall confirm promptly by email) (i) the maximum aggregate gross price of the Units to be sold by such Manager as agreed to by such Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement), (ii) the minimum price per Unit at which such Units may be sold, (iii) the date(s) on which Units may be sold and (iv) such other terms or conditions as agreed to by the Partnership and such Manager. The gross sales price of the Units sold under this Section 2(a) shall be the market price for the period specified in the Placement Notice (as amended Units sold by the corresponding Acceptance, as applicable) specifying that it relates to an “Issuance,” will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent will provide written confirmation to the Company no later than 8:30 a.m. (New York City timeManager under this Section 2(a) on the Trading Day (as defined below) immediately following NYSE at the Trading Day on which it has made sales time of Issuance Securities hereunder setting forth the number sale of Issuance Securities sold on such day, the compensation payable by the Company to the Sales Agent pursuant to Section 2(b) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent (as set forth in Section 6(b)) from the gross proceeds that it receives from such salesUnits. (b) Subject to the provisions of Sections 2(b) terms and 6(d) and the Confirmationconditions hereof, the Forward Seller, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying that it relates to a “Forward,” will applicable Manager shall use its commercially reasonable efforts consistent with its normal trading and sales practices to execute any Placement Instruction submitted to it hereunder to sell Forward Hedge Securities up to the Forward Hedge Amount specified in such Placement Notice Units (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation to the Company and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to the first Trading Day of the Forward Hedge Selling Period pursuant to the related Placement Notice (as amended parameters and conditions designated by the corresponding AcceptancePartnership pursuant to Section 2(a) above) and with respect to which such Manager has agreed to act as sales agent. For the avoidance of doubt, the Partnership shall submit instructions to sell Units to only one Manager, if applicable), the Company shall execute and deliver a Confirmation to the Forward Purchaser related to such Placement. (d) Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NYSEany, on any other existing trading market for the Common Stock or to or through a market makersingle Trading Day. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in privately negotiated transactions. (e) Each of the Company and Operating The Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, such Manager will be successful in selling Securitiesthe Units, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, such Manager will incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities Units for any reason other than a failure by the Sales Agent or the Forward Seller, as applicable, such Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Securities Units as required under this Section 3. For Agreement and (iii) such Manager shall be under no obligation to purchase Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by such Manager and the purposes hereofPartnership in writing pursuant to a Terms Agreement. (c) The Partnership shall not authorize the issuance and sale of, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to applicable Manager shall not sell, any solicitation Unit at a price lower than the minimum price therefor designated by the Partnership pursuant to Section 2(a) above. In addition, the Partnership or the Managers may, upon notice to the other parties hereto by telephone (confirmed promptly by email or facsimile) or by email or facsimile, suspend or terminate an offering of an offer the Units pursuant to buythis Agreement; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Units sold hereunder prior to the giving of such notice. During any such period of suspension, the Partnership shall not be obligated to deliver (or cause to be delivered) any of the documents referred to in Section 6(b), Section 6(c), Section 6(d), Section 6(e), Section 6(f) or Section 6(g), be deemed to affirm any of the representations or warranties contained in this Agreement pursuant to Section 2(f) hereof, or be obligated to conduct any sales due diligence session as referred to in Section 5(y) until the termination of Securities the suspension and the recommencement of the offering of the Units pursuant to this Agreement (which recommencement shall constitute a Representation Date (as defined below)). For the avoidance of doubt, any period during which the Partnership has not provided instructions with respect to the sale of Units pursuant to Section 2(a) hereof, or any period during which such instruction provided thereunder has been properly revoked by the Partnership, shall not be deemed a suspension of the program under this Agreement. (d) The applicable Manager shall provide written confirmation (which may be by facsimile or email) to the Partnership following the close of trading on the NYSE each day on which Units are sold by such Manager under this Agreement setting forth (i) the aggregate number of Units sold on such day, (ii) the aggregate gross offering proceeds from such sales and the Alternative Distribution Agreements aggregate net offering proceeds to the Partnership received from such sales and (iii) the commission or other compensation payable by the Partnership to such Manager with respect to such sales. (e) Subject to the terms of any Terms Agreement, sales of the Units may be made in negotiated transactions or other transactions that are deemed to be “at the market” offerings as defined in Rule 415 under the 1933 Act, including sales made directly on the NYSE or sales made to or through a market maker other than on an exchange, including block transactions, at market prices prevailing at the time of sale or at prices relating to such prevailing market prices. (f) At each Applicable Time, Settlement Date and Representation Date, the Partnership shall be effected deemed to have affirmed each representation and warranty contained in this Agreement as if such representation and warranty were made as of such date (unless such representation and warranty is only made as of the date of this Agreement), but modified to incorporate the disclosures contained in the Registration Statement and the Prospectus, in each case as amended or supplemented as of such date. Any obligation of the applicable Manager to use its commercially reasonable efforts to sell the Units on behalf of the Partnership as sales agent shall be subject to the continuing accuracy of the representations and warranties (as modified in the manner described above) of the Partnership herein, to the performance by the Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (g) If any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 1934 Act are not satisfied with respect to the Units, it shall promptly notify the other parties and sales of the Units under this Agreement and any Terms Agreement shall be suspended until that or through only other exemptive provisions have been satisfied in the Sales Agentjudgment of each party. (h) Subject to such further limitations on offers and sales of the Units or delivery of instructions to offer and sell the Units as are set forth herein and as may be mutually agreed upon by the Partnership and any Manager, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on Partnership shall not request the sale of any single given day, but in no event by more than oneUnits that would be sold, and no Manager shall be obligated to sell during any period in which the Company shall Partnership is, or could be deemed to be, in no possession of material non-public information. (i) If the Partnership wishes to issue and sell the Units pursuant to this Agreement to a Manager as principal (each, a “Placement”), it will notify a Manager of the proposed terms of such Placement. If such Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Partnership, wishes to accept amended terms, such Manager and the Partnership will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Partnership or such Manager unless and until the Partnership and such Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event request that of a conflict between the Sales Agentterms of this Agreement and the terms of a Terms Agreement, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same dayterms of such Terms Agreement will control.

Appears in 1 contract

Samples: Distribution Agency Agreement (NextEra Energy Partners, LP)

Sale of Securities. In reliance upon the representations, warranties and agreements herein contained, and subject to the terms and conditions herein set forth, the Partnership and each Manager agree that the Partnership may from time to time seek to sell Units through a Manager, acting as sales agent (except with respect to Section 2(i)), as follows: (a) Subject The Units are to be sold by one of the provisions of Sections 2(bManagers as shall be agreed to by the Partnership and such Manager on any day that (A) and 6(ais a trading day for the New York Stock Exchange (“NYSE”) (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time) (a “Trading Day”), (B) the Sales AgentPartnership has delivered a placement instruction (a “Placement Instruction”) in the form set forth in Schedule B hereto, and (C) the Partnership has satisfied its obligations under Section 6 of this Agreement. The Placement Instruction from the Partnership will designate (and such Manager shall confirm promptly by email) (i) the maximum aggregate gross price of the Units to be sold by such Manager as agreed to by such Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement), (ii) the minimum price per Unit at which such Units may be sold, (iii) the date(s) on which Units may be sold and (iv) such other terms or conditions as agreed to by the Partnership and such Manager. The gross sales price of the Units sold under this Section 2(a) shall be the market price for the period specified in the Placement Notice (as amended Units sold by the corresponding Acceptance, as applicable) specifying that it relates to an “Issuance,” will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent will provide written confirmation to the Company no later than 8:30 a.m. (New York City timeManager under this Section 2(a) on the Trading Day (as defined below) immediately following NYSE at the Trading Day on which it has made sales time of Issuance Securities hereunder setting forth the number sale of Issuance Securities sold on such day, the compensation payable by the Company to the Sales Agent pursuant to Section 2(b) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent (as set forth in Section 6(b)) from the gross proceeds that it receives from such salesUnits. (b) Subject to the provisions of Sections 2(b) terms and 6(d) and the Confirmationconditions hereof, the Forward Seller, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying that it relates to a “Forward,” will applicable Manager shall use its commercially reasonable efforts consistent with its normal trading and sales practices to execute any Placement Instruction submitted to it hereunder to sell Forward Hedge Securities up to the Forward Hedge Amount specified in such Placement Notice Units (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation to the Company and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to the first Trading Day of the Forward Hedge Selling Period pursuant to the related Placement Notice (as amended parameters and conditions designated by the corresponding AcceptancePartnership pursuant to Section 2(a) above) and with respect to which such Manager has agreed to act as sales agent. For the avoidance of doubt, the Partnership shall submit instructions to sell Units to only one Manager, if applicable), the Company shall execute and deliver a Confirmation to the Forward Purchaser related to such Placement. (d) Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NYSEany, on any other existing trading market for the Common Stock or to or through a market makersingle Trading Day. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in privately negotiated transactions. (e) Each of the Company and Operating The Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, such Manager will be successful in selling Securitiesthe Units, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, such Manager will incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities Units for any reason other than a failure by the Sales Agent or the Forward Seller, as applicable, such Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Securities Units as required under this Agreement and (iii) such Manager shall be under no obligation to purchase Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by such Manager and the Partnership in writing pursuant to a Terms Agreement. (c) The Partnership shall not authorize the issuance and sale of, and the applicable Manager shall not sell, any Unit at a price lower than the minimum price therefor designated by the Partnership pursuant to Section 32(a) above. In addition, the Partnership or the Managers may, upon notice to the other parties hereto by telephone (confirmed promptly by email or facsimile) or by email or facsimile, suspend or terminate an offering of the Units pursuant to this Agreement; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Units sold hereunder prior to the giving of such notice. During any such period of suspension, the Partnership shall not be obligated to deliver (or cause to be delivered) any of the documents referred to in Section 6(b), Section 6(c), Section 6(d), Section 6(e), Section 6(f) or Section 6(g), be deemed to affirm any of the representations or warranties contained in this Agreement pursuant to Section 2(f) hereof, or be obligated to conduct any due diligence session as referred to in Section 5(y) until the termination of the suspension and the recommencement of the offering of the Units pursuant to DB1/ 122710338.6 this Agreement (which recommencement shall constitute a Representation Date (as defined below)). For the purposes avoidance of doubt, any period during which the Partnership has not provided instructions with respect to the sale of Units pursuant to Section 2(a) hereof, “Trading Day” means or any period during which such instruction provided thereunder has been properly revoked by the Partnership, shall not be deemed a suspension of the program under this Agreement. (d) The applicable Manager shall provide written confirmation (which may be by facsimile or email) to the Partnership following the close of trading on the NYSE each day on which shares Units are sold by such Manager under this Agreement setting forth (i) the aggregate number of Common Stock are purchased and Units sold on such day, (ii) the principal aggregate gross offering proceeds from such sales and the aggregate net offering proceeds to the Partnership received from such sales and (iii) the commission or other compensation payable by the Partnership to such Manager with respect to such sales. (e) Subject to the terms of any Terms Agreement, sales of the Units may be made in negotiated transactions or other transactions that are deemed to be “at the market” offerings as defined in Rule 415 under the 1933 Act, including sales made directly on the NYSE or sales made to or through a market maker other than on an exchange, including block transactions, at market prices prevailing at the time of sale or at prices relating to such prevailing market prices. (f) At each Applicable Time, Settlement Date and Representation Date, the Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement as if such representation and warranty were made as of such date (unless such representation and warranty is only made as of the date of this Agreement), but modified to incorporate the disclosures contained in the Registration Statement and the Prospectus, in each case as amended or supplemented as of such date. Any obligation of the applicable Manager to use its commercially reasonable efforts to sell the Units on behalf of the Partnership as sales agent shall be subject to the continuing accuracy of the representations and warranties (as modified in the manner described above) of the Partnership herein, to the performance by the Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (g) If any party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 1934 Act are not satisfied with respect to the Units, it shall promptly notify the other parties and sales of the Units 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. (h) Subject to such further limitations on offers and sales of the Units or delivery of instructions to offer and sell the Units as are set forth herein and as may be mutually agreed upon by the Partnership and any Manager, the Partnership shall not request the sale of any Units that would be sold, and no Manager shall be obligated to sell during any period in which the Common Stock is listed or quoted. The Company agrees that any offer to sell, any solicitation of an offer to buyPartnership is, or any sales could be deemed to be, in possession of Securities material non-public information. (i) If the Partnership wishes to issue and sell the Units pursuant to this Agreement to a Manager as principal (each, a “Placement”), it will notify a Manager of the proposed terms of DB1/ 122710338.6 such Placement. If such Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Partnership, wishes to accept amended terms, such Manager and the Alternative Distribution Agreements shall Partnership will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be effected by binding on the Partnership or through only such Manager unless and until the Sales AgentPartnership and such Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on any single given day, but in no event by more than one, and the Company shall in no event request that the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same dayterms of such Terms Agreement will control.

Appears in 1 contract

Samples: Distribution Agency Agreement (Nextera Energy Partners, Lp)

Sale of Securities. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions set forth in this Agreement or any Terms Agreement, as applicable, the Company, the Selling Stockholder and the Manager agree that the Selling Stockholder may from time to time seek to sell Shares through the Manager, acting as sales agent, or directly to the Manager, acting as principal, as follows: (a) Subject The Selling Stockholder will provide instructions to the provisions of Sections 2(b) and 6(a), the Sales Agent, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying that it relates to an “Issuance,” will use its commercially reasonable efforts consistent Manager with its normal trading and sales practices to sell the Issuance Securities up respect to the amount specified, and otherwise in accordance with manner of distribution of the terms of such Placement Notice Shares (as amended by the corresponding Acceptance, if applicable“Disposition Guidelines”). The Sales Agent will provide written confirmation to the Company no later than 8:30 a.m. (New York City time) on the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the compensation payable Disposition Guidelines may be terminated at any time by the Company to the Sales Agent pursuant to Section 2(b) with respect to such sales, Selling Stockholder and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made shall become effective immediately upon receipt by the Sales Agent Manager (as set forth in Section 6(beach such date of receipt, an “Instruction Date”)) from the gross proceeds that it receives from such sales. (b) Subject to the provisions of Sections 2(b) terms and 6(d) conditions hereof and the Confirmation, the Forward Seller, for the period specified in the Placement Notice (as amended by the corresponding Acceptance, as applicable) specifying that it relates to a “Forward,” will use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Securities up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms Disposition Guidelines then in effect, the Manager shall use its commercially reasonable efforts to sell the Shares on behalf of such Placement Notice (the Selling Stockholder as amended by sales agent or as principal; provided however the corresponding AcceptanceManager shall be under no obligation to purchase the Shares on a principal basis, if applicable). The Forward Seller will provide written confirmation and the Selling Stockholder shall be under no obligation to sell the Shares to the Company and Manager on a principal basis, pursuant to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereofthis Agreement. (c) No later than If the opening of Selling Stockholder agrees to sell the Trading Day immediately prior Shares directly to the first Trading Day Manager as principal in respect of a book-built block trade (a “Principal Purchase”), the Forward Hedge Company, the Selling Period pursuant Stockholder and the Manager shall enter into a separate agreement (each, a “Terms Agreement”), in substantially the form of Exhibit A hereto unless otherwise agreed, relating to the related Placement Notice such sale. (d) At each Time of Sale, Settlement Date and Representation Date (as amended by the corresponding Acceptance, if applicabledefined below), the Company shall execute be deemed to have affirmed each of its representations and deliver a Confirmation warranties contained in this Agreement. At each Instruction Date, the Selling Stockholder shall be deemed to the Forward Purchaser related to such Placement. (d) Subject to the terms have affirmed each of its representations and warranties contained in this Agreement. Any obligation of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock or to or through a market maker. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in privately negotiated transactions. (e) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, will be successful in selling Securities, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, will incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities for any reason other than a failure by the Sales Agent or the Forward Seller, as applicable, Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities the Shares on behalf of the Selling Stockholder as required under sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company and the Selling Stockholder herein, to the performance by the Company and the Selling Stockholder of their obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 4 of this Section 3. For Agreement. (e) Notwithstanding any other provision of this Agreement, the purposes hereofCompany, “Trading Day” means the Selling Stockholder and the Manager agree that no sales of Shares shall take place, the Selling Stockholder shall not request the sales of any day on which shares of Common Stock are purchased Shares that would be sold and sold on the principal market on which the Common Stock is listed Manager shall not be obligated to sell or quoted. The Company agrees that any offer to sell, during any solicitation period in which the Company’s earnings blackout period policy, as it exists from time to time, would prohibit the sale of an offer to buyCommon Stock by the Company, or during any sales other period in which the Company is in possession of Securities pursuant to this Agreement material non-public information. The Company shall notify the Selling Stockholder and the Alternative Distribution Agreements shall Manager, in accordance with Section 5(f), when it is or could be effected by or through only the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on any single given day, but deemed to be in no event by more than one, and the Company shall in no event request that the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same daypossession of material non-public information.

Appears in 1 contract

Samples: Equity Distribution Agreement (Citigroup Inc)

Sale of Securities. (a) Subject to the provisions of Sections 2(b) and 6(a), upon the Sales Agent, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to an “Issuance,” the Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Securities at market prevailing prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Sales Agent will provide written confirmation by email to all of the individuals from the Company set forth on Exhibit C (as such Exhibit C may be amended from time to time) no later than 8:30 a.m. (New York City time) on the opening of the Trading Day (as defined below) immediately following the each Trading Day on which it has made sales of Issuance Securities hereunder setting forth the number of Issuance Securities sold on such day, the corresponding Aggregate Sales Price, the compensation payable by the Company to the Sales Agent pursuant to this Section 2(b3(a) with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Sales Agent (as amounts set forth in Section 6(b) used to determine the amount of the Net Proceeds from the Gross Proceeds (as defined in Section 6(b)) from that the gross proceeds that it Agent receives from such sales. The amount of any commission, discount or other compensation to be paid by the Company to the Agent, when the Agent is acting as agent, in connection with the sale of the Issuance Securities shall be determined in accordance with the terms set forth in Exhibit D. The amount of any commission, discount or other compensation to be paid by the Company to the Agent, when the Agent is acting as principal, in connection with the sale of the Issuance Securities shall be as separately agreed among the parties hereto at the time of any such sales. (b) Subject to the provisions of Sections 2(b) and ), 6(d) and the Master Forward Confirmation, upon the Forward Seller, for the period specified in the delivery of a Placement Notice (as amended by the corresponding Acceptance, as if applicable) specifying that it relates to a “Forward,” the Forward Purchaser (or its affiliate) will use commercially reasonable efforts to borrow, offer and sell Forward Hedge Securities through the Forward Seller to hedge the Forward, and the Forward Seller will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Securities at market prevailing prices up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation by email to all of the individuals from the Company set forth on Exhibit C (as such Exhibit C may be amended from time to time) and to the Forward Purchaser no later than the opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities, the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof. (c) No later than the opening of the Trading Day immediately prior to following the first last Trading Day of the each Forward Hedge Selling Period (or, if earlier, no later than the opening of the Trading Day immediately following the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 4 or the Forward Contract or this Agreement is terminated pursuant to Section 9 or Section 13 hereof), the Forward Purchaser shall execute and deliver to the Company a “Supplemental Confirmation” in respect of the Forward for such Forward Hedge Selling Period, which “Supplemental Confirmation” shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward, which number of days or months shall in no event be less than three (3) months nor more than two (2) years), the “Initial Forward Price” for such Forward, the “Spread” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the Company “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the “Maximum Stock Loan Rate” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the “Threshold Number of Shares” for such Forward, the “Forward Price Reduction Dates” for such Forward (which shall execute and deliver a Confirmation to be each of the dates set forth below the caption “Forward Purchaser related to such Placement. (d) Subject to the terms of Price Reduction Dates” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the amount(s) set forth below the caption “Regular Dividend Amounts” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward). (d) Notwithstanding anything herein to the contrary, the Forward Purchaser’s obligation to use its commercially reasonable efforts to borrow all or any portion of the Forward Hedge Securities (and the Forward Seller’s obligation to use its commercially reasonable efforts to sell such portion of the Forward Hedge Securities) for any Forward hereunder shall be subject in all respects to the last paragraph of Section 3 of the Master Forward Confirmation. (e) The Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of under the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Stock or to or through a market maker. Subject , or subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Sales Agent and the Forward Seller may also sell Placement Securities by any other method permitted by law, including but not limited to in to, privately negotiated transactions, which may include block trades. (e) Each of the Company and Operating Partnership acknowledges and agrees that (i) there can be no assurance that the Sales Agent or the Forward Seller, as applicable, will be successful in selling Securities, and (ii) the Sales Agent or the Forward Seller and the Forward Purchaser, as applicable, will incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities for any reason other than a failure by the Sales Agent or the Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Securities as required under this Section 3. For the purposes hereof, “Trading Day” means any day on which shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Securities pursuant to this Agreement and the Alternative Distribution Agreements shall be effected by or through only the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller on any single given day, but in no event by more than one, and the Company shall in no event request that the Sales Agent, the Forward Seller, an Alternative Sales Agent or an Alternative Forward Seller sell Securities on the same day.

Appears in 1 contract

Samples: Equity Distribution Agreement (STAG Industrial, Inc.)