CAPLEASE, INC. DOCS® Financing Facility Shares of Common Stock, $0.01 par value SALES AGREEMENT October 9, 2009
DOCS®
Financing Facility
Shares of
Common Stock,
$0.01 par
value
October
9, 2009
DOCS® is
a registered service xxxx of Xxxxxxx Xxxxxxx Securities
Corporation
THIS
SALES AGREEMENT (the “Agreement”) dated as of October 9, 2009 between Xxxxxxx
Xxxxxxx Securities Corporation, having its principal office at 0000 Xxxxxxxx,
00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Sales Manager”) and CapLease, Inc., a
corporation organized and existing under the laws of the State of Maryland
(the ”Company”).
WHEREAS,
the Company desires to issue and sell through the Sales Manager shares of its
common stock, $0.01 par value (the “Stock”), on the terms set forth in Article
II below.
IN
CONSIDERATION of the mutual covenants contained in this Agreement, the Company
and the Sales Manager agree as follows:
ARTICLE
I.
REPRESENTATIONS
AND WARRANTIES
OF THE
COMPANY
1.1 For
purposes of this Agreement, unless the context requires to the contrary, the
term “Company” shall also include all significant subsidiaries (as defined by
Section 1-02 of Regulation S-X) of the Company. The Company
represents and warrants to, and agrees with, the Sales Manager
that:
(a) The
Company meets the requirements for use of Form S-3 under the Securities Act of
1933, as amended (the “Act”), and the rules and regulations thereunder (“Rules
and Regulations”) and the Company is eligible to use Form S-3 for the
transactions contemplated by this Agreement. A registration statement
on Form S-3 (Registration No. 333-148653) with respect to, among other
securities, the Stock, including a form of prospectus, has been prepared by the
Company in conformity with the requirements of the Act and the Rules and
Regulations and filed with the Securities and Exchange Commission (the
“Commission”) and has become effective. Such registration statement
and prospectus may have been amended or supplemented prior to the date
hereof. Any such amendment or supplement was so prepared and filed,
and any such amendment or supplement filed after the effective date of such
registration statement and prior to the date hereof has become
effective. No stop order suspending the effectiveness of such
registration statement has been issued, and no proceeding for that purpose has
been instituted or, to the knowledge of the Company, threatened by the
Commission. Copies of such registration statement and prospectus, any
such amendment or supplement and all documents incorporated by reference therein
that were filed with the Commission prior to the date hereof have been made
available to the Sales Manager. Additionally, the Company has filed
or will file a Prospectus Supplement naming the Sales Manager as sales manager
and setting forth certain information regarding the sales to be made through the
Sales Manager. Such registration statement, as it may have heretofore
been or (only to the extent (i) filed and declared effective by the Commission
after the date hereof and (ii) a prospectus supplement forming a part of such
registration statement and relating to the Stock to be offered and sold pursuant
to this Agreement having been filed pursuant to Rule 424 under the Act) may
hereafter be filed as amended, is referred to herein as the “Registration
Statement,” and the final form of prospectus included in the Registration
Statement, as amended or supplemented from time to time relating to the Stock,
is referred to herein as the “Prospectus.” Any reference herein to
the Registration Statement, the Prospectus, or any amendment or supplement
thereto shall be deemed to refer to and include the documents incorporated (or
deemed to be incorporated) by reference therein, and any reference herein to the
terms “amend,” “amendment” or “supplement” with respect to the Registration
Statement or Prospectus shall be deemed to refer to and include the filing after
the execution hereof of any document with the Commission deemed to be
incorporated by reference therein.
(b) (1)
Each part of the Registration Statement, when such part became or becomes
effective, and the Prospectus and any amendment or supplement thereto, on the
date of filing thereof with the Commission and at each Settlement Date (as
hereinafter defined), conformed or will conform in all material respects with
the requirements of the Act and the Rules and Regulations; each part of the
Registration Statement, when such part became or becomes effective, did not or
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at each
Settlement Date, did not or will not include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
except that the foregoing shall not apply to statements in or omissions from any
such document in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of the Sales Manager, specifically for
use in the Registration Statement, the Prospectus or any amendment or supplement
thereto.
(c) The
documents incorporated by reference in the Registration Statement or the
Prospectus, or any amendment or supplement thereto, when they become or became
effective under the Act or were or are filed with the Commission under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), as the case
may be, conformed or will conform in all material respects with the requirements
of the Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder.
(d) The
financial statements of the Company, together with the related schedules and
notes thereto, set forth or included or incorporated by reference in the
Registration Statement and Prospectus, fairly present the financial condition of
the Company as of the dates indicated and the results of operations, changes in
financial position, stockholders’ equity, and cash flows for the periods therein
specified, in conformity with generally accepted accounting principles
consistently applied throughout the periods involved (except as otherwise stated
therein). The summary and selected financial and statistical data
included or incorporated by reference in the Registration Statement and the
Prospectus fairly present the information shown therein and, to the extent based
upon or derived from the financial statements, have been compiled on a basis
consistent with the financial statements presented therein. In
addition, any pro forma financial statements of the Company, and the related
notes thereto, included or incorporated by reference in the Registration
Statement and the Prospectus, present fairly the information shown therein, have
been prepared in accordance with the Commission’s rules and guidelines with
respect to pro forma financial statements and have been properly compiled on the
basis described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein. Furthermore,
all financial statements required by Rule 3-14 of Regulation S-X (“Rule 3-14”),
if any, have been included or incorporated by reference in the Registration
Statement and the Prospectus and any such financial statements are in conformity
with the requirements of Rule 3-14. No other financial statements are
required to be set forth or incorporated by reference in the Registration
Statement or the Prospectus under the Rules and the Regulations.
(e) McGladrey
& Xxxxxx LLP, which has expressed their opinion with respect to the
financial statements and the supporting schedules included or incorporated by
reference in the Registration Statement are and, during the periods covered by
their reports, were independent registered public accounting firm with respect
to the Company within the meaning of the Act and the applicable rules and
regulations thereunder adopted by the Commission and the Public Company
Accounting Oversight Board (United States).
(f) The
Company has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Maryland. Other than as
disclosed in the Registration Statement, the Company has no material
subsidiaries and does not control, directly or indirectly, any material
corporation, partnership, limited liability company, joint venture, association
or other business organization. The Company is duly qualified and in
good standing as a foreign corporation in each jurisdiction in which the
character or location of its assets or properties (owned, leased or licensed) or
the nature of its business makes such qualification necessary (including every
jurisdiction in which it owns or leases property), except for such jurisdictions
where the failure to so qualify would not have a Material Adverse Effect on the
Company. For purposes of this Agreement, “Material Adverse Effect”
means any adverse effect on the business, operations, properties or financial
condition of the Company that is (either alone or together with all other
adverse effects) material to the Company and its subsidiaries taken as a whole,
and any material adverse effect on the issuance and sale of Stock by the Company
contemplated under this Agreement. Each of the Company’s significant
subsidiaries is validly existing as a corporation, limited liability company or
partnership, as applicable, in its respective jurisdiction of formation.
Schedule 1.1(f) hereto identifies each of the Company’s subsidiaries that is a
significant subsidiary (as defined in Section 1-02 of Regulation S-X) of the
Company (each, a “Significant Subsidiary”). All of the issued and
outstanding capital stock, limited liability company interests or partnership
interests, as applicable, of each Significant Subsidiary has been duly
authorized and validly issued and, if applicable, is fully paid and
nonassessable and (except as otherwise disclosed or incorporated by reference in
the Registration Statement and the Prospectus) is owned by the Company, directly
or indirectly, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. Except as disclosed or incorporated by
reference in the Registration Statement and the Prospectus, the Company does not
own, lease or license any asset or property or conduct any business outside the
United States of America. The Company and each of its Significant
Subsidiaries has all requisite corporate partnership or limited liability
company power and authority, as applicable, and all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits of and from all
governmental orders or regulatory bodies or any other person or entity, to own,
lease, license and operate its assets and properties and conduct its business as
now being conducted and as described in the Registration Statement and the
Prospectus; except for such authorizations, approvals, consents, orders,
licenses, certificates and permits the absence of which would not have a
Material Adverse Effect; and no such authorization, approval, consent, order,
license, certificate or permit contains a materially burdensome restriction
other than as disclosed in the Registration Statement and the
Prospectus.
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(g) Intentionally
Omitted.
(h) The
Company has good and marketable title to, or leasehold interests in, all
properties and assets (including, without limitation, mortgaged assets) as
described in the Registration Statement and the Prospectus or any document
incorporated by reference therein owned by the Company, free and clear of all
liens, charges, encumbrances or restrictions, except such as are described in
the Registration Statement and the Prospectus or any document incorporated by
reference therein and except such as would not have a Material Adverse Effect on
the Company. The Company has such consents, easements, rights-of-way
or licenses (collectively, “rights-of-way”) from any person as are necessary to
conduct its business in the manner described in the Registration Statement,
except for those which if not obtained would not, singly or in the aggregate,
have a Material Adverse Effect on the Company, and none of such rights-of-way
contains any restriction that is materially burdensome to the
Company.
(i) Except
as set forth in the Registration Statement and the Prospectus, the debt
financing employed by the Company to acquire its portfolio of mortgage assets is
not convertible into shares of Stock of the Company or other equity interests in
the Company.
(j) There
is no litigation or governmental or other proceeding or investigation before any
court or before or by any public body or board pending or, to the knowledge of
the Company, threatened against, or involving the assets, properties or
businesses of the Company which would materially adversely affect the value or
the operation of any such assets or otherwise have a Material Adverse Effect on
the Company and its subsidiaries as a whole except as described or incorporated
by reference in the Registration Statement.
(k) The
Company maintains insurance (issued by insurers of recognized financial
responsibility) of the types and in the amounts generally deemed adequate for
its businesses and, to the knowledge of the Company, consistent with insurance
coverage maintained by similar companies in similar businesses, including, but
not limited to, insurance covering real and personal property owned or leased by
the Company against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against, all of which insurance is in full force and
effect.
(l) Subsequent
to the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as described therein, (i) there has not
been any material adverse change in the assets or properties, business, results
of operations or financial condition of the Company, whether or not arising from
transactions in the ordinary course of business; (ii) the Company has not
sustained any material loss or interference with its assets, businesses or
properties (whether owned or leased) from fire, explosion, earthquake, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or any court or legislative or other governmental action, order or decree; (iii)
since the date of the latest balance sheet, included or incorporated by
reference in the Registration Statement and the Prospectus, except as reflected
therein, the Company has not undertaken any liability or obligation, direct or
contingent, except such liabilities or obligations that are not material or are
undertaken in the ordinary course of business; and (iv) there has not been any
transaction that is material to the Company, except transactions in the ordinary
course of business or as otherwise disclosed in the Registration Statement and
the Prospectus.
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(m) There
is no document or contract of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described or filed as
required. Each document, instrument, contract and agreement of the
Company described in the Registration Statement or the Prospectus or
incorporated by reference therein or listed as exhibits to the Registration
Statement is in full force and effect and is valid and enforceable by and
against the Company in accordance with their terms, assuming the due
authorization, execution and delivery thereof by each of the other parties
thereto except as otherwise disclosed in the Registration Statement or
Prospectus. The Company is not, nor to the knowledge of the Company
is any other party, in default in the observance or performance of any term or
obligation to be performed by it under any such agreement, and no event has
occurred which with notice or lapse of time or both would constitute such a
default, which default or event would have a Material Adverse
Effect. No default exists, and no event has occurred which with
notice or lapse of time or both would constitute a default, in the due
performance and observance of any term, covenant or condition, by the Company of
any other agreement or instrument to which the Company is a party or by which it
or its properties or business may be bound or affected, which default or event
would have a Material Adverse Effect.
(n) Neither
the Company nor any of its Significant Subsidiaries is in violation of any term
or provision of its charter, by-laws, partnership agreement, or operating
agreement, as applicable. The Company is not in violation of any
franchise, license, permit, judgment, decree, order, statute, rule or
regulation, where the consequences of such violation would have a Material
Adverse Effect.
(o) Neither
the execution, delivery and performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated hereby (including, without
limitation, the issuance and sale by the Company of the Stock) will give rise to
a right to terminate or accelerate the due date of any payment due under, or
conflict with or result in the breach of any term or provision of, or constitute
a default (or an event which with notice or lapse of time or both would
constitute a default) under, or require any consent or waiver under, or result
in the execution or imposition of any lien, charge, encumbrance, claim, security
interest, restriction or defect upon any properties or assets of the Company
pursuant to the terms of, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company is a party or by which the Company
is bound, or any of its properties are bound, or any franchise, license, permit,
judgment, decree, order, statute, rule or regulation applicable to the Company
or violate any provision of the charter or by-laws of the Company, except for
such consents or waivers which have already been obtained and are in full force
and effect.
(p) All
of the outstanding shares of Stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable and none of such shares were
issued in violation of any preemptive or other similar right. The
Stock, when issued and sold pursuant to this Agreement, will be duly authorized
and validly issued, fully paid and nonassessable and will not be issued in
violation of any preemptive or other similar right. Except as
disclosed in the Registration Statement and the Prospectus, there is no
outstanding option, warrant or other right calling for the issuance of, and
there is no commitment, plan or arrangement to issue, any capital stock of the
Company or any security convertible into or exercisable or exchangeable for such
capital stock, except for standard dividend reinvestment plans. The
Stock conforms in all material respects to all statements relating thereto
contained in the Registration Statement and the Prospectus. Any stock
options issued by the Company have been issued in compliance with applicable
law, and the terms and provisions of such stock options were established in
compliance with applicable law except as would not have a Material Adverse
Effect.
(q) Subsequent
to the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as (x) described or referred to therein, or
(y) are not material and are consistent with past practice, the Company has not
(i) issued any securities or incurred any liability or obligation, direct or
contingent, except such liabilities or obligations incurred in the ordinary
course of business including, without limitation, debt financing to acquire and
develop properties, (ii) entered into any transaction not in the ordinary course
of business or (iii) declared or paid any dividend or made any distribution on
any of its securities or redeemed, purchased or otherwise acquired or agreed to
redeem, purchase or otherwise acquire any of its securities.
(r) Except
as disclosed in the Registration Statement and Prospectus, no holder of any
security of the Company has the right, which has not been waived, to have any
security owned by such holder included in the Registration Statement or any
right to demand registration of any security owned by such
holder.
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(s) All
necessary corporate action has been duly and validly taken by the Company to
authorize the execution, delivery and performance of this Agreement and the
issuance and sale of the Stock by the Company except for blue sky
filings and New York Stock Exchange listing application, which to the extent
required, will be completed prior to any applicable sales. This
Agreement has been duly and validly authorized, executed and delivered by the
Company and constitutes and will constitute the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms. Except for “blue sky” filings or Trading Market listing
applications to be filed pursuant hereto, each approval, consent, order,
authorization, designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in connection with the
execution and delivery by the Company of this Agreement and the consummation of
the transactions contemplated hereby and the issuance and sale of the Stock by
the Company has been obtained or made and is in full force and
effect. The Company will use its reasonable best efforts to cause the
Stock to be listed for trading on the Trading Market. For purposes of
this Agreement, the “Trading Market” is the New York Stock Exchange,
Inc.
(t) The
Company has not incurred any liability for a fee, commission or other
compensation on account of the employment of a broker or finder in connection
with the transactions contemplated by this Agreement other than as contemplated
hereby or as described in the Registration Statement.
(u) The
Company is conducting its business in compliance with all applicable laws, rules
and regulations of the jurisdictions in which it is conducting business,
including, without limitation, the Americans with Disabilities Act of 1990 and
all applicable local, state and federal employment, truth-in-advertising,
franchising and immigration laws and regulations, except where the failure to be
so in compliance would not have a Material Adverse Effect.
(v) No
transaction has occurred between or among the Company and any of its officers or
directors or any affiliate or affiliates of any such officer or director that is
required to be described in and is not adequately described in the Registration
Statement and the Prospectus.
(w) The
Company has not taken, nor will it take, directly or indirectly, any action
designed to or which might reasonably be expected to cause or result in, or
which has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any securities of the Company to
facilitate the sale or resale of any shares of the Stock.
(x) The
Company has filed all federal, state, local and foreign tax returns that are
required to be filed through the date hereof (and will file all such tax returns
when and as required to be filed after the date hereof), or has received
extensions thereof, and has paid all taxes shown on such returns to be due on or
prior to the date hereof (and will pay all taxes shown on such returns to be due
after the date hereof) and all assessments received by it to the extent that the
same are material and have become due except where the failure to file such a
return or pay such amount would not have a Material Adverse Effect.
(y) The
Company has met the qualification requirements for a “real estate investment
trust” during its taxable years ending December 31, 2008 and, based on its
proposed method of operations, the Company expects to continue to meet the
requirements for qualification and taxation as a “real estate investment trust”
under the Internal Revenue Code of 1986, as amended (the “Code”), assuming no
change in the applicable underlying law. The Company does not know of
any event that would cause or is likely to cause the Company to fail to qualify
as a “real estate investment trust” at any time.
(z) The
Company is, and after giving effect to the offering and sale of the Stock, will
be, exempt from regulation as an “investment company,” a person “controlled by”
an “investment company” or an “affiliated person” of or “promoter” or “principal
underwriter” for an “investment company,” as such terms are defined in the
Investment Company Act of 1940, as amended (the “Investment Company
Act”).
(aa) The
Company’s systems of internal accounting controls taken as a whole are
sufficient to meet the broad objectives of internal accounting control insofar
as those objectives pertain to the prevention or detection of errors or
irregularities in amounts that would be material in relation to the Company’s
financial statements; and, to the best of the Company’s knowledge, neither the
Company nor any employee or agent thereof has made any payment of funds of the
Company or received or retained any funds, and no funds of the Company have been
set aside to be used for any payment, in each case in violation of any law, rule
or regulation.
5
(bb) The
Company is not involved in any labor dispute and, to the knowledge of the
Company, no such dispute has been threatened, except for such disputes as would
not have a Material Adverse Effect on the Company, or subject the Company or its
shareholders to any material liability or disability.
(cc) Except
as disclosed in the Registration Statement or the Prospectus or any document
incorporated therein, (i) there has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic wastes,
hazardous wastes or hazardous substances by the Company or any of its
subsidiaries (or to the knowledge of the Company, any of their predecessors in
interest) at, upon or from any of the property now or previously owned or leased
by the Company or its subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial action
which would not have a Material Adverse Effect; (ii) there has been no spill,
discharge, leak, emission, injection, escape, dumping or release of any kind
onto such property or into the environment surrounding such property of any
toxic wastes, solid wastes, hazardous wastes or hazardous substances due to or
caused by the Company or any of its subsidiaries, except for any such spill,
discharge, leak emission, injection, escape, dumping or release which would not
have a Material Adverse Effect; and (iii) the terms “hazardous wastes,” “toxic
wastes” and “hazardous substances” shall have the meanings specified in any
applicable local, state, federal and foreign laws or regulations with respect to
environmental protection.
(dd) There
is and has been no failure on the part of the Company or, to the knowledge of
the Company, any of the Company’s directors or officers, in their capacities as
such in relation to the Company, to comply in all material respects with any
provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith, including without limitation Section 402
related to loans and Sections 302 and 906 related to certificates.
ARTICLE
II.
SALE AND
DELIVERY OF SECURITIES
2.1 Sale
and Delivery of Securities.
(a) On
the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Company agrees to
issue and sell through the Sales Manager, as agent, and the Sales Manager agrees
to sell, as agent for the Company, on a best efforts basis, the Stock during the
term of this Agreement on the terms set forth herein. The Stock will
be sold from time to time in amounts and at prices as directed by the Company
and as agreed to by the Sales Manager.
(b) The
Company or the Sales Manager may, upon notice to the other party hereto by
telephone (confirmed promptly by telecopy), at any time and from time to time
suspend the offering of Stock; provided, however, that such
suspension or termination shall not affect or impair the parties’ respective
obligations with respect to the Stock sold hereunder prior to the giving of such
notice.
(c) The
compensation to the Sales Manager for sales of Stock shall be at the following
commission rates: 2.0% of the gross sales price per share (“sales proceeds”) for
the first $5 million of aggregate sales proceeds raised from the sale of Stock
under this Agreement and 1.5% of sales proceeds for any additional aggregate
sales proceeds raised from the sale of Stock under this
Agreement. The remaining proceeds, after further deduction for any
transaction fees imposed by any governmental or self-regulatory organization in
respect to such sale shall constitute the net proceeds to the Company for such
Stock (the “Net Proceeds”).
(d) The
Company shall open and maintain a trading account (the “Trading Account”) at a
clearing agent designated by the Sales Manager to facilitate the transactions
contemplated by this Agreement. The Company shall, with respect to
each sale of Stock, effect delivery of the applicable number of Stock to the
Trading Account, on or before the third business day (or such other day as is
industry practice for regular-way trading) following each sale of the Stock
(each, a “Settlement Date”). The Net Proceeds from the sale of the
Stock shall be available in the Trading Account following the settlement of the
sale on the Settlement Date. The Sales Manager’s compensation shall
be withheld from the sales proceeds on each Settlement Date and shall be paid to
the Sales Manager.
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(e) At
each Settlement Date, the Company shall be deemed to have affirmed each
representation, warranty, covenant and other agreement contained in this
Agreement. Any obligation of the Sales Manager under this Agreement
shall be subject to the continuing accuracy of the representations and
warranties of the Company herein, to the performance by the Company of its
obligations hereunder and to the continuing satisfaction of the additional
conditions specified in Article IV below.
(f) If
the Company shall default on its obligation to deliver shares of Stock on any
Settlement Date, the Company shall (i) hold the Sales Manager harmless against
any loss, claim or damage arising from or as a result of such default by the
Company and (ii) pay the Sales Manager any commission to which it would
otherwise be entitled absent such default.
ARTICLE
III.
COVENANTS
OF THE COMPANY
3.1 The
Company covenants and agrees with the Sales Manager that:
(a) As
promptly as practicable after the date of this Agreement, the Company will file
a supplement to the Prospectus to permit sales of the Stock pursuant to this
Agreement.
(b) During
the period in which a prospectus relating to the Stock is required to
be delivered under the Act (including any period where such requirement is
deemed satisfied pursuant to Rule 153 or Rule 172 under the Act), the Company
will notify the Sales Manager promptly of the time when any subsequent amendment
to the Registration Statement has become effective or any subsequent supplement
to the Prospectus has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or the Prospectus or for
additional information; the Company will prepare and file with the Commission,
promptly upon the Sales Manager’s reasonable request, any amendments or
supplements to the Registration Statement or Prospectus that, in the Sales
Manager’s reasonable opinion, may be necessary or advisable in connection with
the sale of the Stock pursuant to this Agreement; the Company will
not file any amendment or supplement to the Registration Statement or Prospectus
relating to the Stock to be sold pursuant to this Agreement unless a copy
thereof has been submitted to the Sales Manager a reasonable period of time
before the filing and the Sales Manager has not reasonably objected thereto; and
will cause any such documents to be available on XXXXX and/or on the Company’s
website at xxx.xxxxxxxx.xxx (and will furnish to the Sales Manager any such
document that is not available on XXXXX or the Company’s
website). The Company will cause each amendment or supplement to the
Prospectus to be filed with the Commission as required pursuant to the Rules and
Regulations or, in the case of any document to be incorporated therein by
reference, to be filed with the Commission as required pursuant to the Exchange
Act, within the time period prescribed.
(c) The
Company will advise the Sales Manager, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement, of the suspension of
the qualification of the Stock for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceeding for any such purpose; and it
will promptly use its commercially reasonable efforts to prevent the issuance of
any stop order or to obtain its withdrawal if such a stop order should be
issued.
(d) Within
the time during which a prospectus relating to the Stock is required to be
delivered under the Act (including any period where such requirement is deemed
satisfied pursuant to Rule 153 or Rule 172 under the Act), the Company will
comply with all requirements imposed upon it by the Act and by the Rules and
Regulations, as from time to time in force, so far as necessary to permit the
continuance of sales of or dealings in the Stock as contemplated by the
provisions hereof and the Prospectus. If during such period any event
occurs as a result of which the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if during such period it is necessary to amend
or supplement the Registration Statement or Prospectus to comply with the Act,
the Company will promptly notify the Sales Manager to suspend the offering of
Stock during such period and the Company will amend or supplement the
Registration Statement or Prospectus (at the expense of the Company) so as to
correct such statement or omission or effect such compliance and will use its
commercially reasonable efforts to have any amendment or supplement to the
Registration Statement or Prospectus declared effective as soon as possible,
unless the Company has reasonable business reasons to defer public disclosure of
the relevant information.
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(e) The
Company will use its commercially reasonable efforts to qualify the Stock for
sale under the securities laws of such jurisdictions as the Sales Manager
designates and to continue such qualifications in effect so long as required for
the sale of the Stock, except that the Company shall not be required in
connection therewith to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction.
(f) The
Company will furnish to the Sales Manager and its legal counsel (at the expense
of the Company) copies of the Registration Statement and the Prospectus during
the period in which a prospectus relating to the Stock is required to be
delivered under the Act (including any period where such requirement is deemed
satisfied pursuant to Rule 153 or Rule 172 under the Act), in each case as soon
as available and in such quantities as the Sales Manager may from time to time
reasonably request. The Company will take such action as to enable
the conditions set forth in Rule 153(b) to be satisfied at all times that the
Sales Agent is selling Stock.
(g) The
Company will make generally available to its security holders as soon as
practicable, but in any event not later than 15 months after the end of the
Company’s current fiscal quarter, an earnings statement (which need not be
audited) covering a 12-month period that satisfies the provisions of Section
11(a) of the Act and Rule 158 of the Rules and Regulations.
(h) The
Company, whether or not the transactions contemplated hereunder are consummated
or this Agreement is terminated, will pay all of its expenses incident to the
performance of its obligations hereunder (including, but not limited to, any
transaction fees imposed by any governmental or self-regulatory organization
with respect to transactions contemplated by this Agreement and any blue sky
fees) and will pay the expenses of printing all documents relating to the
offering. In addition, without limiting the foregoing, the Company
will pay, or reimburse the Sales Manager for, any filing fees incurred by the
Sales Manager in connection with filings required to be made by the Sales
Manager under FINRA Rule 5110, the Corporate Financing Rule.
(i) The
Company shall use its commercially reasonable efforts to list, subject to notice
of issuance, the Stock on each applicable Trading Market.
(j) The
Company will apply the Net Proceeds from the sale of the Stock as set forth in
the Prospectus.
(k) Intentionally
Omitted.
(l) The
Company will, at any time during the term of this Agreement, as supplemented
from time to time, advise the Sales Manager immediately after it shall have
received notice or obtain knowledge thereof, of any information or fact that
would alter or affect any opinion, certificate, letter and other document
provided to the Sales Manager pursuant to Article IV below.
(m) Each
time that (i) the Registration Statement or the Prospectus shall be amended or
supplemented or (ii) there is filed with the Commission any document
incorporated by reference into the Prospectus (other than a Current Report or
Form 8-K unless the Sales Manager shall otherwise request), the Company shall
(unless the Company is not then selling Stock through the Sales Manager and has
not requested the Sales Manager to sell Stock) furnish or cause to be furnished
to the Sales Manager forthwith a certificate dated the date of filing with the
Commission of such amendment, supplement or other document, the date of
effectiveness of amendment, as the case may be, in form satisfactory to the
Sales Manager to the effect that the statements contained in the certificates
referred to in Section 4.1(f) below that were last furnished to the Sales
Manager are true and correct at the time of such amendment, supplement, filing,
as the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificates, certificates of the same tenor as the certificates referred to in
said Section 4.1(f) below, modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such certificate.
8
(n) Each
time that a post-effective amendment to the Registration Statement is declared
effective or the Company files a Form 10-K, and at such other times as may be
reasonably requested by the Sales Manager, the Company shall (unless the Company
is not then selling Stock through the Sales Manager and has not requested the
Sales Manager to sell Stock) furnish or cause to be furnished forthwith to the
Sales Manager and to its legal counsel, (i) a written opinion of Hunton &
Xxxxxxxx LLP, counsel to the Company (“Company Counsel”), or other counsel
reasonably satisfactory to the Sales Manager, and (ii) a written opinion of
in-house counsel to the Company, each dated the date of effectiveness of such
amendment or the date of filing with the Commission of such document, as the
case may be, in form and substance satisfactory to the Sales Manager, of the
same tenor as the opinion referred to in Section 4.1(d) below, but modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion.
(o) Each
time that a post-effective amendment to the Registration Statement is declared
effective or the Company files an Annual Report on Form 10-K, and at such other
times as may be reasonably requested by the Sales Manager, the Company shall
(unless the Company is not then selling Stock through the Sales Manager and has
not requested the Sales Manager to sell Stock) cause McGladrey & Xxxxxx LLP,
or other independent accountants then retained by the Company, forthwith to
furnish to the Sales Manager a letter, dated the date of effectiveness of such
amendment, or the date of filing of such supplement or other document with the
Commission, as the case may be, in form satisfactory to the Sales Manager, of
the same tenor as the letter referred to in Section 4.1(e) below but modified to
relate to the Registration Statement and the Prospectus, as amended and
supplemented to the date of such letter.
(p) The
Company represents and agrees that, unless it obtains the prior consent of the
Sales Manager (which shall not be unreasonably withheld), and the Sales Manager
represents and agrees that, unless it obtains the prior consent of the Company
(which shall not be unreasonably withheld), it has not made and will not make
any offer relating to the Stock that would constitute an Issuer Free Writing
Prospectus, or that would otherwise constitute a “free writing prospectus” as
defined in Rule 405, required to be filed with the Commission. The
foregoing restriction shall not apply to: (i) free writing
prospectuses other than those relating to the sale of Stock, or any follow-on
sale relating to such free writing prospectus or (ii) free writing prospectuses
pertaining to Sales of Stock pursuant to stock incentive or dividend
reinvestment plans. Any such free writing prospectus consented to by
the Company and the Sales Manager is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company represents that it has treated
and agrees that it will treat each Permitted Free Writing Prospectus as an
“issuer free writing prospectus,” as defined in Rule 433 of the Act, and has
complied and will comply with the requirements of Rules 164 and 433 of the Act,
as applicable to any Permitted Free Writing Prospectus, including timely
Commission filings where required, legending and record
keeping. Notwithstanding anything to the contrary in this Agreement,
except as set forth in this Section 3.1(p), Sales Manager acknowledges and
agrees that the Company shall not be restricted by this Agreement from offering
or selling any securities other than pursuant to this Agreement, including but
not limited to pursuant to a stock incentive or dividend reinvestment
plan.
For the
purposes of this Section, “Issuer Free Writing Prospectus” means any “issuer
free writing prospectus,” as defined in Rule 433 of the Act, relating to the
Stock in the form filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s records pursuant to
Rule 433(g) of the Act.
ARTICLE
IV.
CONDITIONS
OF THE SALES MANAGER’S OBLIGATIONS
4.1 The
obligations of the Sales Manager to sell the Stock as provided herein shall be
subject to the accuracy, as of the date hereof, and as of each Settlement Date
contemplated under this Agreement, of the representations and warranties of the
Company herein, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
9
(a) The
Registration Statement shall have been declared effective. No stop
order suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall have been instituted or, to the
knowledge of the Company or the Sales Manager, threatened by the Commission, and
any request of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been complied
with to the Sales Manager’s reasonable satisfaction.
(b) The
Sales Manager shall not have advised the Company that the Registration Statement
or the Prospectus, or any amendment or supplement thereto, contains an untrue
statement of fact that in the Sales Manager’s reasonable opinion is material, or
omits to state a fact that in the Sales Manager’s reasonable opinion is material
and is required to be stated therein or is necessary to make the statements
therein not misleading.
(c) Except
as contemplated in the Prospectus, subsequent to the respective dates as of
which information is given in the Registration Statement and the Prospectus,
there shall not have been any material change in the capital stock of the
Company, or any material adverse change, or any development that may reasonably
be expected to cause a material adverse change, in the financial condition,
business, net worth or results of operations of the Company, or any adverse
change in the rating assigned to any securities of the Company.
(d) (1) The
Sales Manager shall have received at the date of the first sale of Stock
hereunder (the “Commencement Date”) and at every other date specified in Section
3.1(n) above and such other times as may be reasonably requested by the Sales
Manager, opinions of Company Counsel, dated as of the Commencement Date and
dated as of such other date, in the form of Schedule A hereto.
(2) The
Sales Manager shall have received a letter from Company Counsel authorizing the
Sales Manager to rely on the opinion on tax matters delivered by Company Counsel
as Exhibit 8.1 to the Registration Statement.
(e) On
the Commencement Date and at such other dates specified in Section 3.1(o) above
and at such other times as may be reasonably requested by the Sales Manager, the
Sales Manager shall have received a “comfort letter” from McGladrey & Xxxxxx
LLP, independent public accountants for the Company, or other independent
accountants then retained by the Company, dated the date of delivery thereof, in
form and substance satisfactory to the Sales Manager.
(f) The
Sales Manager shall have received from the Company a certificate, or
certificates, signed by the Chief Financial Officer and President or Chief
Executive Officer or any Vice President of the Company, dated as of the
Commencement Date and (unless the Company is not then selling Stock through the
Sales Manager and has not requested the Sales Manager to sell Stock) dated as of
the first business day of each calendar month thereafter (each, a “Certificate
Date”), to the effect that, to the best of their knowledge based upon reasonable
investigation:
(i) The
representations and warranties of the Company in this Agreement are true and
correct, as if made at and as of the Commencement Date or the Certificate Date
(as the case may be), and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Commencement Date and each such Certificate Date (as the case may
be);
(ii) No
stop order suspending the effectiveness of the Registration Statement has been
issued, and no proceeding for that purpose has been instituted or, to the
knowledge of such officer after due inquiry, is threatened, by the
Commission;
(iii) Since
the date of this Agreement there has occurred no event required to be set forth
in an amendment or supplement to the Registration Statement or Prospectus that
has not been so set forth and there has been no document required to be filed
under the Exchange Act and the rules and regulations of the Commission
thereunder that upon such filing would be deemed to be incorporated by reference
in the Prospectus that has not been so filed; and
10
(iv) Since
the date of this Agreement, there has not been any material adverse change in
the assets or properties, business, results of operations or financial condition
of the Company, which has not been described in an amendment or supplement to
the Registration Statement or Prospectus (directly or by
incorporation).
(g) If
required, the Sales Manager’s participation in the distribution of Stock
contemplated by this Agreement shall have been reviewed and found acceptable by
the NASD pursuant to FINRA Rule 5110, the Corporate Financing
Rule. In addition, on each Certificate Date the certificate shall
also reconfirm that the shares of Stock sold during the immediately preceding
month were duly and validly authorized by the Company and that all corporate
action required to be taken for the authorization issuance and sale of such
shares of Stock had been validly and sufficiently taken.
(h) On
each Settlement Date, the Company shall have furnished to the Sales Manager such
appropriate further information, certificates and documents as the Sales Manager
may reasonably request.
All such
opinions, certificates, letters and other documents will be in compliance with
the provisions hereof only if they are reasonably satisfactory in form and
substance to the Sales Manager. The Company will furnish the Sales
Manager with such conformed copies of such opinions, certificates, letters and
other documents, as the Sales Manager shall reasonably request.
ARTICLE
V.
INDEMNIFICATION
AND CONTRIBUTION
5.1 (a) The
Company agrees to indemnify and hold harmless the Sales Manager and each person,
if any, who controls the Sales Manager within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto), or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or arising
out of any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Company; and
(iii) against
any and all expense whatsoever, as incurred (including, subject to Section
5.1(c) below, the reasonable fees and disbursements of legal counsel chosen by
the Sales Manager), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however,
that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by the Sales Manager expressly
for use in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
11
(b) The
Sales Manager agrees to indemnify and hold harmless the Company and its
directors and each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
Section 5.1(a) above, as incurred, but only with respect to untrue statements or
omissions or alleged untrue statements or omissions, made in the Registration
Statement (or any amendments thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by the Sales
Manager expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto). The total liability of the Sales Manager under
this Section 5.1(b) shall not exceed the total actual sales price of Stock sold
by the Sales Manager that is the subject of the dispute.
(c) Any
indemnified party that proposes to assert the right to be indemnified under this
Article V will, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Article V, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve the indemnifying party from any liability that it might have to any
indemnified party except to the extent that the indemnifying party demonstrates
that the defense of such claim is materially prejudiced by the indemnified
party’s failure to give such notice. If any such action is brought
against any indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate in and, to
the extent that it elects by delivering written notice to the indemnified party
promptly after receiving notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with legal counsel reasonably satisfactory
to the indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party
will not be liable to the indemnified party for any legal or other expenses
except as provided below. The indemnified party will have the right
to employ its own legal counsel in any such action, but the fees, expenses and
other charges of such legal counsel will be at the expense of such indemnified
party unless (1) the employment of legal counsel by the indemnified party has
been authorized in writing by the indemnifying party, (2) the indemnified party
has reasonably concluded (based on the written advice of legal counsel) that
there are likely to be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the
indemnifying party, (3) a conflict exists (based on the written advice of legal
counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have the right
to direct the defense of such action on behalf of the indemnified party) or (4)
the indemnifying party has not in fact employed legal counsel to assume the
defense of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of legal counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying
party or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time for all such indemnified party or
parties. All such fees, disbursements and other charges will be
reimbursed by the indemnifying party promptly as they are
incurred. An indemnifying party will not be liable for any settlement
of any action or claim effected without its written consent (which consent will
not be unreasonably withheld).
12
(d) In
order to provide for just and equitable contribution in circumstances in which
the indemnification provided for in the foregoing paragraphs of this Article V
is applicable in accordance with its terms but for any reason is held to be
unavailable from the Company or the Sales Manager, the Company and the Sales
Manager will contribute to the total losses, claims, liabilities, expenses and
damages (including any investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, but after deducting any contribution
received by the Company from persons other than the Sales Manager, such as
persons who control the Company within the meaning of the Act, officers of the
Company who signed the Registration Statement and directors of the Company, who
also may be liable for contribution) to which the Company and the Sales Manager
may be subject in such proportion as shall be appropriate to reflect the
relative benefits received by the Company on the one hand and the Sales Manager
on the other. The relative benefits received by the Company on the
one hand and the Sales Manager on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total compensation (before
deducting expenses) received by the Sales Manager from the sale of Stock on
behalf of the Company. If, but only if, the allocation provided by
the foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and the Sales Manager, on the
other, with respect to the statements or omission which resulted in such loss,
claim, liability, expense or damage, or action in respect thereof, as well as
any other relevant equitable considerations with respect to such
offering. Such relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Sales Manager, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Sales Manager agree that
it would not be just and equitable if contributions pursuant to this Section
5.1(d) were to be determined by pro rata allocation or by any other method of
allocation, which does not take into account, the equitable considerations
referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 5.1(d) shall be deemed to
include, for the purpose of this Section 5.1(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the foregoing
provisions of this Section 5.1(d), the Sales Manager shall not be required to
contribute any amount in excess of the amount by which the total actual sales
price at which Stock sold by the Sales Manager exceeds the amount of any damages
that the Sales Manager has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission and no person
found guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 5.1(d), any person who controls a party to this Agreement within the
meaning of the Act will have the same rights to contribution as that party, and
each officer and director of the Company who signed the Registration Statement
will have the same rights to contribution as the Company, subject in each case
to the provisions hereof. Any party entitled to contribution,
promptly after receipt of notice of commencement of any action against such
party in respect of which a claim for contribution may be made under this
Section 5.1(d), will notify any such party or parties from whom contribution may
be sought, but the omission so to notify will not relieve that party or parties
from whom contribution may be sought from any other obligation it or they may
have under this Section 5.1(d). No party will be liable for
contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
(e) The
indemnity and contribution provided by this Article V shall not relieve the
Company and the Sales Manager from any liability the Company and the Sales
Manager may otherwise have (including, without limitation, any liability the
Sales Manager may have for a breach of its obligations under Article II
above).
ARTICLE
VI.
REPRESENTATIONS
AND AGREEMENTS TO SURVIVE DELIVERY
6.1 All
representations, warranties and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the Sales Manager
contained in Article V above, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Sales Manager
or any controlling persons, or the Company (or any of their officers, directors
or controlling persons), and shall survive delivery of and payment for the
Stock.
ARTICLE
VII.
TERMINATION
7.1 The
Company shall have the right, by giving notice as hereinafter specified, to
terminate this Agreement in its sole discretion at any time. Any such
termination shall be without liability of any party to any other party except
that the provisions of Section 3.1(h), Article V and Article VI above shall
remain in full force and effect notwithstanding such
termination.
13
7.2 The
Sales Manager shall have the right, by giving notice as hereinafter specified,
to terminate this Agreement in its sole discretion at any time. Any
such termination shall be without liability of any party to any other party
except that the provisions of Sections 3.1(h), Article V and Article VI above
shall remain in full force and effect notwithstanding such
termination.
7.3 This
Agreement shall remain in full force and effect unless terminated pursuant to
Section 7.1 or 7.2 above or otherwise by mutual agreement of the parties;
provided that any such termination by mutual agreement shall in all cases be
deemed to provide that Sections 3.1(h), Article V and Article VI shall remain in
full force and effect.
7.4 Any
termination of this Agreement shall be effective on the date specified in such
notice of termination; provided that such termination shall not be effective
until the close of business on the date of receipt of such notice by the Sales
Manager or the Company, as the case may be. If such termination shall
occur during a period when sales of Stock are being made pursuant to this
Agreement, any sales of Stock made prior to the termination of this Agreement
shall settle in accordance with the provisions of this
Agreement.
ARTICLE
VIII.
NOTICES
8.1 All
notices or communications hereunder shall be in writing and if sent to the Sales
Manager shall be mailed, delivered or telecopied and confirmed to the Sales
Manager at Xxxxxxx Xxxxxxx Securities Corporation, 0000 Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, facsimile number (000) 000-0000, Attention: Corporate
Finance, or if sent to the Company, shall be mailed, delivered or telecopied and
confirmed to the Company at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: General Counsel; facsimile number
000-000-0000. Each party to this Agreement may change such address
for notices by sending to the parties to this Agreement written notice of a new
address for such purpose.
ARTICLE
IX.
MISCELLANEOUS
9.1 This
Agreement shall inure to the benefit of and be binding upon the Company and the
Sales Manager and their respective successors and the controlling persons,
officers and directors referred to in Article V above, and no other person will
have any right or obligation hereunder.
9.2 This
Agreement constitutes the entire agreement and supersedes all other prior and
contemporaneous agreements and undertakings, both written and oral, between the
parties hereto with regard to the subject matter hereof.
9.3 THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS.
9.4 This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. The parties agree that this Agreement will be considered
signed when the signature of a party is delivered by facsimile
transmission. Such facsimile transmission shall be treated in all
respects as having the same effect as an original signature.
14
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the date
hereof.
|
By:
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/s/ Xxxx X.
Xxxxxx
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Name:
Xxxx X. Xxxxxx
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Title:
General Counsel
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XXXXXXX
XXXXXXX SECURITIES CORPORATION
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By:
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/s/ Xxxx
Xxxxx
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Name:
Xxxx Xxxxx
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Title:
Managing Director
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15
