Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days following the date of the Prospectus, the Company will not, without the prior written consent of the Representative (which consent may not be unreasonably withheld), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common Shares); provided, however, that the Company may (i) issue shares of Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of Common Stock upon the exercise of options, in both cases, pursuant to any stock option plan or arrangement described in the Prospectus, and issue shares of Common Stock to directors in payment of annual directors' fees pursuant to the Company's Directors' Stock Ownership Plan, (iii) issue shares of Common Stock to directors and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient of such shares enters into a lock-up agreement with terms substantially equivalent to the lock-up agreements delivered to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion of the Company's 8% convertible subordinated debentures outstanding on the date hereof, and (viii) issue up to $70 million of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debentures.
Appears in 1 contract
Sources: Underwriting Agreement (Sizeler Property Investors Inc)
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 60th day following the date of the ProspectusFinal Offering Memorandum (the "Lock-Up Period"), the Company will not, without the prior written consent of the Representative Representatives (which consent may not be unreasonably withheldwithheld at the sole discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "put equivalent position" or liquidate or decrease a "call equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfertransfer (or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition of), or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement and the Registration Rights Agreement with respect to the Common Notes and the Conversion Shares); provided, however, that the Company may foregoing restrictions do not apply to (i) issue shares of Common Stock issued upon the exercise of warrants outstanding options granted under stock option plans existing on the date hereof and described in the Prospectushereof, (ii) grant options to purchase grants of Common Stock and issue Stock, restricted common stock or restricted stock units in accordance with the terms of a plan in effect on the date hereof, (iii) shares of Common Stock upon the exercise of (or options, in both cases, pursuant warrants or convertible securities relating to any stock option plan or arrangement described in the Prospectus, and issue shares of Common Stock to directors Stock) issued in payment connection with a bona fide merger or acquisition transaction, (iv) the offer, issuance or sale of annual directors' fees securities pursuant to the Company's Directors' Dividend Reinvestment and Stock Ownership Plan, Purchase Plan existing on the date hereof (iiithe "DRIP") issue (provided that the Company agrees not to permit investments greater than $20,000 by any single investor under the DRIP during the Lock-Up Period) or (v) shares of Common Stock to directors and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient of such shares enters into a lock-up agreement with terms substantially equivalent to the lock-up agreements delivered to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion of the Company's 8% convertible subordinated debentures outstanding on the date hereof, and (viii) issue up to $70 million of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debenturesManagement Agreement.
Appears in 1 contract
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days following the date of the Prospectus, the The Company will not, without the prior written consent of the Representative (which consent may not be unreasonably withheld), directly or indirectly, sell, offer, sell or contract or grant any option to sell, pledge, transfer or establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transferenter into any transaction which is designed to, or could be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, or announce the offering of, any other Common Shares or file any registration statement under the Securities Act in respect ofsecurities convertible into, any shares of Common Stockor exchangeable for, options or warrants to acquire shares of Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common Shares); provided, however, that the Company may (i) issue shares and sell Common Shares pursuant to any director or employee stock option plan or stock ownership plan of Common Stock upon the exercise of warrants outstanding on Company in effect at the date hereof of the Prospectus and described in the Prospectus, (ii) grant options to purchase issue Common Stock and issue shares Shares issuable upon the conversion of Common Stock upon securities or the exercise of options, in both cases, pursuant to any stock option plan or arrangement warrants outstanding at the date of the Prospectus and described in the Prospectus, ; and (iii) issue shares of and sell Common Stock to directors in payment of annual directors' fees Shares pursuant to the Company's Directors' Stock Ownership Plan, (iii) issue shares ’s dividend reinvestment and stock purchase plan in effect at the date of Common Stock to directors the Prospectus and officers under compensatory arrangements consistent with as described in the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient of such shares enters into a lock-up agreement with terms substantially equivalent to the lock-up agreements delivered to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion of the Company's 8% convertible subordinated debentures outstanding on the date hereof, and (viii) issue up to $70 million of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's ’s registration statement on Form S-4 S-3 (Registration File No. 333-72208114742) as filed with the Commission on April 22, 2004, as amended by Post-Effective Amendment No. 1 to such registration statement on Form S-3 as filed with the Commission on May 3, 2004 (including any subsequent Company registration statement on Form S-3 which is filed by the Company and which relates to the Company’s dividend reinvestment and stock purchase plan in effect at the date of the Prospectus, the “DRIP”); provided, however, that during the period beginning on the date of this Agreement and ending on the Company Lock-Up Termination Date (as defined immediately below), the Company shall not grant any amendment or supplement thereto and issue shares request for a waiver relating to optional cash payments under the DRIP in excess of Ten Thousand Dollars ($10,000) (each, a “Waiver Request”) if as a result of such grant (i) the aggregate proceeds to the Company from all sales of Common Shares during the period beginning on the date of this Agreement and ending on the thirtieth (30th) day after the date of this Agreement pursuant to granted Waiver Requests would exceed Five Million Dollars ($5,000,000) or (ii) the aggregate proceeds to the Company from all sales of Common Shares during the period beginning on the thirty first (31st) day after the date of this Agreement and ending on the sixtieth (60th) day after (and including) the day the Firm Shares commence trading on the New York Stock issuable upon conversion Exchange pursuant to granted Waiver Requests would exceed Five Million Dollars ($5,000,000) These restrictions shall terminate at the close of such newly issued convertible subordinated debenturestrading on the sixtieth (60th) day after (and including) the day the Firm Shares commence trading on the New York Stock Exchange (the “Company Lock-Up Termination Date”) (unless waived earlier by JMP Securities LLC, in its sole discretion).
Appears in 1 contract
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 60th day following the date of the ProspectusFinal Offering Memorandum, none of the Company will notor any of the Guarantors will, without the prior written consent of the Representative (which consent may not be unreasonably withheldwithheld at the sole discretion of the Representative), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "“put equivalent position" ” or liquidate or decrease a “call equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfertransfer (or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition of), or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common SharesNotes); provided, however, that the Company may issue shares of its Common Stock or options to purchase its Common Stock, or Common Stock (i) issue shares upon conversion of Common Stock upon the exercise of warrants outstanding on the date hereof and described in the ProspectusCompany’s 5.75% Convertible Notes due 2013, (ii) grant options to purchase Common Stock and issue shares upon exercise of Common Stock warrants that were issued concurrently with the Company’s 5.75% Convertible Notes due 2013 or (iii) upon the exercise of options, in both cases, pursuant to any stock option option, stock bonus or other stock plan or arrangement described in the ProspectusDisclosure Package and the Final Offering Memorandum, and issue but only if the holders of such shares, options, or shares issued upon exercise of such options, agree in writing not to sell, offer, dispose of or otherwise transfer any such shares or options (except forfeitures of Common Stock or options to directors in payment of annual directors' fees pursuant to the Company's Directors' Stock Ownership Plan, (iii) issue shares of purchase Common Stock to by the directors and executive officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient of such shares enters into a lock-up agreement with terms substantially equivalent subject to the lock-up agreements delivered agreement attached as Exhibit F hereto to satisfy tax withholding obligations and, in the case of options exercises, payment of exercise price, in connection with the vesting of equity awards acquired by directors and executive officers pursuant to equity incentive plans existing and as in effect on the date of this Agreement will be permitted, provided that the number of shares sold for consideration on the open market or to any third party by all of the executive officers and directors of the Company who are subject to the Representative pursuant to Section 6(i), (vii) issue lock-up agreement does not in the aggregate exceed 200,000 shares of Common Stock issuable upon conversion Stock) during such 60-day period without the prior written consent of the Company's 8% convertible subordinated debentures outstanding on Representative (which consent may be withheld at the date hereof, and (viii) issue up to $70 million sole discretion of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debenturesRepresentative).
Appears in 1 contract
Sources: Purchase Agreement (Alaska Communications Systems Group Inc)
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 180th day following the date of the Prospectus, (the “Lock-up Period”) the Company will not, without the prior written consent of the Representative Representatives (which consent may not be unreasonably withheldwithheld at the sole discretion of the Representatives), directly or indirectly, sell, offeroffer to sell, contract or grant any option to sell, pledge, hypothecate, grant any option to purchase, transfer or otherwise dispose of, grant any rights with respect to, or file a registration statement with the Commission in respect of, or establish an open "or increase a put equivalent position" position or liquidate or decrease a call equivalent position within the meaning of Rule 16a-1(h) under Section 16 of the Exchange Act, or otherwise dispose be the subject of any hedging, short sale, derivative or transferother transaction that is designed to, or announce the offering ofreasonably expected to lead to, or file any registration statement under result in, the Securities Act in respect effective economic disposition of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock Stock, or publicly announce an intention to do any of the foregoing (other than as contemplated by this Agreement with respect to the Common Offered Shares)) or publicly announce the Company’s intention to do any of the foregoing; provided, however, that the Company may (i) issue shares of its Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant or options or other awards to purchase its Common Stock and issue shares of Stock, or Common Stock upon the exercise of options, in both caseswarrants or convertible securities, pursuant to any stock option option, stock bonus or other incentive plan or other arrangement described in the Prospectus, but only if the holders of such shares, options or other awards, or shares issued upon exercise of such options, warrants or convertible securities agree in writing not to sell, offer, dispose of or otherwise transfer any such shares, options or warrants during such Lock-up Period without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives). Notwithstanding the foregoing, if (a) during the period that begins on the date that is 15 calendar days plus three business days before the last day of the Lock-up Period and issue shares ends on the last day of Common Stock to directors in payment of annual directors' fees pursuant the Lock-up Period, the Company issues an earnings release or material news or a material event relating to the Company's Directors' Stock Ownership Plan, Company occurs; or (iiib) issue shares of Common Stock to directors and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion expiration of the purchase price for properties acquired from sellers who are not affiliates Lock-up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Company; provided that each recipient of such shares enters into a lockLock-up agreement with terms substantially equivalent Period, then the restrictions imposed in this clause shall continue to apply until the expiration of the date that is 15 calendar days plus three business days after the date on which the issuance of the earnings release or the material news or material event occurs, unless the Representatives waive such extension. The Company will provide the Representatives and each individual subject to the 180-day restricted period pursuant to the lock-up agreements delivered described in Section 3(B)(a) with prior notice of any such announcement that gives rise to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion an extension of the Company's 8% convertible subordinated debentures outstanding on the date hereof, and (viii) issue up to $70 million of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333Lock-72208) and any amendment Up Period or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debenturessuch180-day restricted period.
Appears in 1 contract
Sources: Underwriting Agreement (Wireless Ronin Technologies Inc)
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 90th day following the date of the ProspectusFinal Offering Memorandum, the Company will not, without the prior written consent of the Representative BAS (which consent may not be unreasonably withheldwithheld at the sole discretion of BAS), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "“put equivalent position" ” or liquidate or decrease a “call equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfertransfer (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition of), or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common StockStock (other than with respect to the exercise of options outstanding prior to the date hereof), options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common SharesDebentures); provided, however, that the Company may (i) issue shares of its Common Stock or options to purchase its Common Stock, or shares of its Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of Common Stock upon the exercise of options, in both cases, pursuant to any stock option option, stock bonus or other stock plan or arrangement described in the ProspectusDisclosure Package or the Final Offering Memorandum, and issue shares of Common Stock to directors in payment of annual directors' fees pursuant provided, however, that to the Company's Directors' Stock Ownership Planextent such shares, (iii) issue options or shares issued upon exercise of Common Stock such options are issued to directors and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all a director or a portion of the purchase price for properties acquired from sellers who are not affiliates executive officer of the Company; provided that each recipient , such director or executive officer agrees in writing not to sell, offer, dispose of or otherwise transfer any such shares enters into or options during such 90 day period without the prior written consent of BAS (which consent may be withheld at the sole discretion of the BAS). Notwithstanding the foregoing, if (x) during the last 17 days of the 90-day restricted period the Company issues an earnings release or material news or a lockmaterial event relating to the Company occurs, or (y) prior to the expiration of the 90-up agreement with terms substantially equivalent day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The Company will provide the Representatives and each individual subject to the restricted period pursuant to the lock-up agreements delivered letters described in Section 5(h) with prior notice of any such announcement that gives rise to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion an extension of the Company's 8% convertible subordinated debentures outstanding on the date hereof, and (viii) issue up to $70 million of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debenturesrestricted period.
Appears in 1 contract
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 45 days following the date of the Prospectus, the Company will not, without the prior written consent of the Representative Representatives (which consent may not be unreasonably withheldwithheld at the sole discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "“put equivalent position" ” within the meaning of Rule 16a-1(h16a-l(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common StockShares, options or warrants to acquire shares of Common Stock Shares or securities exchangeable or exercisable for or convertible into shares of Common Stock Shares (other than as contemplated by this Agreement with respect to the Common Shares); provided, however, that the Company may (i) issue shares of grant Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) Share awards or grant options to purchase Common Stock Shares and issue shares of Common Stock Shares upon the exercise of options, in both cases, pursuant to any stock option plan or arrangement the Equity Compensation Plans described in the Registration Statement, the General Disclosure Package and the Prospectus, and provided, that all of the holders of such Common Share awards, options, or Common Shares issued upon the exercise of such options, agree not to sell, offer, dispose of or otherwise transfer any such options or Common Shares during such 45 day period without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives), (ii) issue shares of Common Stock to directors Units in payment of annual directors' fees pursuant to connection with the Company's Directors' Stock Ownership Plan’s or a Subsidiary’s acquisition of properties or interests in the owners of properties, (iii) issue shares file a resale registration statement under the Securities Act with respect to Common Shares issuable upon exercise of Common Stock to directors outstanding Units, and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or file a portion of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient of such shares enters into a lock-up agreement with terms substantially equivalent to the lock-up agreements delivered to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion of the Company's 8% convertible subordinated debentures outstanding on the date hereof, and (viii) issue up to $70 million of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment or supplement thereto and issue shares S-8 under the Securities Act with respect to the registration of Common Stock issuable upon conversion of such newly Shares to be issued convertible subordinated debenturesunder the Equity Compensation Plans described in the Registration Statement, the General Disclosure Package and the Prospectus.
Appears in 1 contract
Sources: Underwriting Agreement (First Potomac Realty Trust)
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 45 days (“Lock-Up Period”) following the date of the Prospectus, the Company will not, without the prior written consent of the Representative Representatives (which consent may not be unreasonably withheldwithheld at the sole discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "“put equivalent position" ” within the meaning of Rule 16a-1(h16a-l(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common StockShares, options or warrants to acquire shares of Common Stock Shares or securities exchangeable or exercisable for or convertible into shares of Common Stock Shares (other than as contemplated by this Agreement with respect to the Common Shares); provided, however, that the Company may (i) issue shares of grant Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) Share awards or grant options to purchase Common Stock Shares and issue shares of Common Stock Shares upon the exercise of options, in both cases, pursuant to any stock option plan or arrangement the Company’s equity compensation plans described in the Registration Statement, the General Disclosure Package and the Prospectus, and (ii) issue shares of Common Stock to directors in payment of annual directors' fees Shares pursuant to the Company's Directors' ’s Employee Stock Ownership PlanPurchase Plan as in effect on the date hereof, (iii) issue shares of Common Stock to directors and officers under compensatory arrangements consistent Units in connection with the Company's prior practices’s or a Subsidiary’s acquisition of properties or interests in the owners of properties and issue Common Shares upon redemption of such Units, (iv) issue shares of Common Stock file a redemption and/or resale registration statement under the DRIPSecurities Act with respect to Common Shares issuable upon exercise of outstanding Units and issue Common Shares upon redemption of such Units, and (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or file a portion of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient of such shares enters into a lock-up agreement with terms substantially equivalent to the lock-up agreements delivered to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion of the Company's 8% convertible subordinated debentures outstanding on the date hereof, and (viii) issue up to $70 million of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment or supplement thereto and issue shares S-8 under the Securities Act with respect to the registration of Common Stock issuable upon conversion Shares to be issued under the Company’s equity compensation plans described in the Registration Statement, the General Disclosure Package and the Prospectus. Notwithstanding the foregoing, if (1) during the last 17 days of such newly issued convertible subordinated debenturesthe Lock-Up Period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results or becomes aware that material news or a material event will occur during the 16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed in this clause (l) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.
Appears in 1 contract
Sources: Underwriting Agreement (First Potomac Realty Trust)
Agreement Not to Offer or Sell Additional Securities. During the For a period of ---------------------------------------------------- 90 days following after the date of Prospectus (the Prospectus“Lock-up Period”), the Company will notnot (i) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Representative Representative, other than (which consent may not A) the Offered Shares to be unreasonably withheld)sold hereunder, directly (B) shares or indirectlyoptions to purchase its Common Stock issued pursuant to any stock option plan, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Actstock bonus, or otherwise dispose other stock plan or arrangement approved by the Board of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares Directors of Common Stock, options or warrants to acquire shares of Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common Shares); provided, however, that the Company may (i) issue shares of Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (iiC) grant options to purchase Common Stock and issue shares of Common Stock upon the exercise of such options described in clause (B), but in the case of Lock-Up Participants only if the holders of such shares, options, or shares issued upon exercise of such options, agree in both caseswriting not to sell, pursuant to offer, dispose of or otherwise transfer any stock option plan such shares or arrangement described options during the Lock-up Period without the prior written consent of JMP (which consent may be withheld in the Prospectus, and issue shares of its sole discretion) or (D) Common Stock to directors in payment of annual directors' fees pursuant to upon the Company's Directors' Stock Ownership Plan, (iii) issue shares of Common Stock to directors and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient of such shares enters into a lock-up agreement with terms substantially equivalent to the lock-up agreements delivered to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion of the Company's 8% convertible subordinated debentures Series A-1 Preferred Stock outstanding on the date hereof or the exercise of any warrants outstanding on the date hereof, and but in the case of Lock-Up Participants only if the holders of such shares agree in writing not to sell, offer, dispose of or otherwise transfer any such shares or options during the Lock-up Period without the prior written consent of JMP (viiiwhich consent may be withheld in its sole discretion). Notwithstanding the foregoing, if (1) issue up to $70 million during the last 17 days of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company's registration statement Company occurs; or (2) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on Form S-4 (Registration No. 333the last day of the 90-72208) and any amendment day period, the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or supplement thereto and issue shares the occurrence of Common Stock issuable upon conversion of such newly issued convertible subordinated debenturesthe material news or material event.
Appears in 1 contract
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 180th day following the date of the Prospectus, the Company will not, without the prior written consent of the Representative BAS (which consent may not be unreasonably withheldwithheld at the sole discretion of BAS), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "“put equivalent position" ” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common Shares); provided, however, that the Company may (i) file a registration statement on Form S-8 and may issue shares of its Common Stock or options to purchase its Common Stock, or Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of Common Stock upon the exercise of options, in both cases, pursuant to any stock option option, stock bonus or other stock plan or arrangement described in the Prospectus, but only if the holders of such shares, options, or shares issued upon exercise of such options, agree in writing not to sell, offer, dispose of or otherwise transfer any such shares or options during such 180 day period without the prior written consent of BAS (which consent may be withheld at the sole discretion of the BAS). In addition, during the period commencing on the date hereof and issue ending on the 180th day following the date of the Prospectus, the Company shall not consent or agree in any manner, without the prior written consent of BAS (which consent may be withheld at the sole discretion of BAS), to the amendment or waiver of any agreement or provision, including, without limitation, any Registration Rights Agreement, restricting the ability of the Company’s securityholders to, directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file an registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock to directors in payment of annual directors' fees pursuant (other than as contemplated by this Agreement with respect to the Company's Directors' Stock Ownership Plan, (iii) issue shares of Common Stock to directors and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient of such shares enters into a lock-up agreement with terms substantially equivalent to the lock-up agreements delivered to the Representative pursuant to Section 6(iShares), (vii) issue shares of Common Stock issuable upon conversion of the Company's 8% convertible subordinated debentures outstanding on the date hereof, and (viii) issue up to $70 million of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debentures.
Appears in 1 contract
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 180th day following the date of the Prospectus, the Company will not, without the prior written consent of the Representative BAS (which consent may not be unreasonably withheldwithheld at the sole discretion of BAS), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "“put equivalent position" ” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement (provided, however, the Company may file a Form S-8 registration statement under the Securities Act to register shares of Common Stock issuable under any stock option, stock bonus or other stock plan or arrangement described in the Prospectus) under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common Shares); provided, however, that the Company may (i) issue shares of its Common Stock or options to purchase its Common Stock, or Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of Common Stock upon the exercise of options, in both cases, pursuant to any stock option option, stock bonus or other stock plan or arrangement described in the Prospectus, and issue but only if (a) the shares of Common Stock are to directors in payment be issued upon exercise of annual directors' fees pursuant to the Company's Directors' Stock Ownership Plan, (iii) issue shares of Common Stock to directors and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion of the purchase price for properties acquired stock options that are exempt from sellers who are not affiliates of the Company; provided that each recipient of such shares enters into a lock-up agreement with terms substantially equivalent to the lock-up agreements delivered to the Representative provisions pursuant to Section 6(i5(m), (viib) issue the holders of such shares, options, or shares issued upon exercise of Common Stock issuable upon conversion such options, agree in writing not to sell, offer, dispose of or otherwise transfer any such shares or options during such 180-day period without the prior written consent of BAS (which consent may be withheld at the sole discretion of BAS), or (c) any such options granted do not vest during such 180-day period. Notwithstanding the foregoing, if (x) during the last 17 days of the Company's 8% convertible subordinated debentures outstanding 180-day restricted period the Company issues an earnings release, or (y) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the date hereof, and (viii) issue up to $70 million last day of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant 180-day period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release; provided however, that this sentence shall not apply if any research published or distributed by any Underwriter on the Company would be compliant under Rule 139 of the Securities Act and the Company's registration statement on Form S-4 (Registration No. 333-72208’s securities are actively traded as defined in Rule 101(c)(1) and any amendment or supplement thereto and issue shares of Common Stock issuable upon conversion Regulation M of such newly issued convertible subordinated debenturesthe Exchange Act.
Appears in 1 contract
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 90th day following the date of the Prospectus, the Company will not, without the prior written consent of the Representative Representatives (which consent may not be unreasonably withheldwithheld at the sole discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "“put equivalent position" ” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common Shares); provided, however, that the Company may (ix) issue shares of its Common Stock upon the exercise of warrants outstanding on the date hereof and by certain Selling Stockholders as described in the Prospectus, Prospectus and (iiy) grant issue shares of its Common Stock or options to purchase its Common Stock and issue shares of Stock, or Common Stock upon the exercise of options, in both cases, pursuant to any stock option option, stock bonus or other stock plan or arrangement described in the ProspectusProspectus (including the Company’s 2005 Employee Stock Purchase Plan), and issue but only if the holders of such shares, options, or shares issued upon exercise of Common Stock such options, agree in writing not to directors in payment sell, offer, dispose of annual directors' fees pursuant or otherwise transfer any such shares or options during such 90-day period without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives). Notwithstanding the foregoing, if (x) during the last 17 days of the 90-day restricted period the Company issues an earnings release or material news or a material event relating to the Company's Directors' Stock Ownership PlanCompany occurs, or (iiiy) issue shares of Common Stock to directors and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion expiration of the purchase price for properties acquired from sellers who are not affiliates 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Company; provided that each recipient of such shares enters into a lock90-up agreement with terms substantially equivalent day period, the restrictions imposed by this Section 3(A)(l) shall continue to apply until the lock-up agreements delivered to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion expiration of the Company's 8% convertible subordinated debentures outstanding 18-day period beginning on the date hereof, and (viii) issue up to $70 million issuance of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to earnings release or the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment occurrence of the material news or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debenturesmaterial event.
Appears in 1 contract
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days following commencing on the date of this Agreement and ending on the Prospectus365th day thereafter, the Company Company: (A) will notnot and will not permit any of its officers and directors, and will use commercially reasonable efforts to not permit any of its stockholders who are subject to the Amended and Restated Stockholders Agreement, dated as of January 12, 2006, as amended, without the prior written consent of the Representative (which consent may not be unreasonably withheldwithheld at the Representative’s sole discretion), directly or indirectly, to sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "“put equivalent position" ” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act (except as contemplated by the Prospectus) in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Units and any shares of Common SharesStock (or options, warrants or convertible securities in respect thereof) issued in connection with a bona fide merger or acquisition transaction or strategic partnership approved by the Company’s Board of Directors (the “Board”)); provided, however, that the Company may (i) issue shares of its Common Stock or options to purchase shares of its Common Stock, or shares of Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of Common Stock upon the exercise of options, in both caseseach case, pursuant to any stock option plan option, stock bonus or other stock plan, arrangement or contractual obligation that has been approved by the Board and ratified by the Company’s stockholders; and (B) will not issue any shares of its Common Stock or grant options to purchase shares of its Common Stock or other stock-based awards pursuant to its 2005 Stock Incentive Plan (other than issuances of Common Stock upon exercise of options outstanding as of September 30, 2007 as described in the Disclosure Package and Prospectus, and issue shares of Common Stock as the case may be). In addition, the Company will not engage Mirus Capital Advisors, Inc. to directors in payment of annual directors' fees pursuant provide any financial advisory or other services to the Company's Directors' Stock Ownership Plan, Company during the ninety (iii90) issue shares of Common Stock to directors and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient of such shares enters into a lock-up agreement with terms substantially equivalent to the lock-up agreements delivered to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion of the Company's 8% convertible subordinated debentures outstanding on day period immediately following the date hereof, and (viii) issue up to $70 million of on which the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debenturesStatement is declared effective.
Appears in 1 contract
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 180th day following the date of the Prospectus, the Company will not, without the prior written consent of the Representative BAS (which consent may not be unreasonably withheldwithheld at the sole discretion of BAS), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "“put equivalent position" ” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common Shares); provided, however, that the Company may (i) issue shares of its Common Stock or options to purchase its Common Stock, or Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of Common Stock upon the exercise of options, in both casesor warrants, pursuant to any stock option option, stock bonus or other stock plan or arrangement described in the Prospectus, and issue but only if the holders of such shares, options, warrants, or shares issued upon exercise of Common Stock such options or warrants, agree in writing not to directors in payment sell, offer, dispose of annual directors' fees pursuant or otherwise transfer any such shares or options during such 180-day period without the prior written consent of BAS (which consent may be withheld at the sole discretion of the BAS). Notwithstanding the foregoing, if (x) during the last 17 days of the 180-day restricted period the Company issues an earnings release or material news or a material event relating to the Company's Directors' Stock Ownership PlanCompany occurs, or (iiiy) issue shares prior to the expiration of Common Stock the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, the restrictions imposed in this clause shall continue to directors apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event; provided however, that this sentence shall not apply if any research published or distributed by any Underwriter on the Company would be compliant under Rule 139 of the Securities Act and officers under compensatory arrangements consistent with the Company's prior practices, (iv’s securities are actively traded as defined in Rule 101(c)(1) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion Regulation M of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient of such shares enters into a lock-up agreement with terms substantially equivalent to the lock-up agreements delivered to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion of the Company's 8% convertible subordinated debentures outstanding on the date hereof, and (viii) issue up to $70 million of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debenturesExchange Act.
Appears in 1 contract
Sources: Underwriting Agreement (Threshold Pharmaceuticals Inc)
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 60th day following the date of the Prospectushereof, the Company will not, without the prior written consent of the Representative Representatives (which consent may not be unreasonably withheldwithheld at the sole discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any option to sellsell (including without limitation any short sale), pledge, transfer or establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common Debentures and the Conversion Shares); provided, however, that the Company may (i) issue shares of its Common Stock or options to purchase its Common Stock, or Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of Common Stock upon the exercise of options, in both cases, pursuant to any stock option option, stock bonus or other stock plan or arrangement described in the ProspectusFinal Offering Memorandum, and but only if the holders of such shares, options, or shares issued upon exercise of such options, agree in writing not to sell, offer, dispose of or otherwise transfer any such shares or options during such 60 day period without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives); provided, further, that the Company may issue restricted shares of Common Stock or options to directors in payment of annual directors' fees pursuant to the Company's Directors' Stock Ownership Plan, (iii) issue shares of purchase its Common Stock to directors and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all any employee or a portion of the purchase price for properties acquired from sellers prospective employee who are has not affiliates of the Company; provided that each recipient of such shares enters into executed a lock-up agreement with terms substantially equivalent to the lock-up agreements delivered to the Representative pursuant to Section 6(i), (vii5(h) issue shares of Common Stock issuable upon conversion of the Company's 8% convertible subordinated debentures outstanding on the date hereof, and (viii) issue up to $70 million of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debentures.
Appears in 1 contract
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 90th day following the date of the Final Prospectus, the Company will not, without the prior written consent of the Representative Underwriter (which consent may not be unreasonably withheldwithheld at the sole discretion of the Underwriter), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "“put equivalent position" ” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common Shares)Stock; provided, however, that the Company may (i) issue shares of its Common Stock or options to purchase its Common Stock, or Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of Common Stock upon the exercise of options, in both cases, pursuant to any stock option plan Stock Plan or arrangement described in the ProspectusFinal Prospectus or the Company’s Proxy Statement on Schedule 14A filed with the Commission on March 5, 2004 or with respect to which registration statements on Form S-8 have been filed by the Company with the Commission and have been declared effective on or prior to the date of this Agreement; (ii) issue shares of its Common Stock upon conversion of the Notes pursuant to the terms of such Notes; and (iii) file a registration statement under the Securities Act or an amendment to a registration statement under the Securities Act, in each case in relation to the Notes or the shares of Common Stock to directors in payment into which the Notes are convertible. Notwithstanding the foregoing, if (x) during the last 17 days of annual directors' fees pursuant the 90-day restricted period the Company issues an earnings release or material news or a material event relating to the Company's Directors' Stock Ownership PlanCompany occurs; or (y) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period; the restrictions imposed in this clause (iiim) issue shares shall continue to apply until the expiration of Common Stock to directors the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event; provided however, that this sentence shall not apply if the research published or distributed on the Company is compliant under Rule 139 of the Securities Act and officers under compensatory arrangements consistent with the Company's prior practices, (iv’s securities are actively traded as defined in Rule 101(c)(1) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion Regulation M of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient of such shares enters into a lock-up agreement with terms substantially equivalent to the lock-up agreements delivered to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion of the Company's 8% convertible subordinated debentures outstanding on the date hereof, and (viii) issue up to $70 million of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debenturesExchange Act.
Appears in 1 contract
Sources: Underwriting Agreement (Walter Industries Inc /New/)
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days following the date The Company will not, will cause each of the ProspectusSubsidiaries not to, and will cause each of their directors, officers and beneficial owners of greater than five percent (5%) of their respective capital stock to enter into agreements (the Company "Lock-Up Agreements") substantially in the form of Exhibit B to the effect that each of them will not, without the prior written consent of the Representative Stif▇▇, ▇▇▇▇▇▇▇▇ & ▇ompany, Incorporated (which consent may not be unreasonably withheldwithheld at the sole discretion of Stif▇▇, ▇▇▇▇▇▇▇▇ & ▇ompany, Incorporated), during the period of 180 days following the date of the Prospectus, directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, Shares, Warrants or Units, options or warrants to acquire shares of the Common Stock Stock, Shares, Warrants or Units or securities exchangeable or exercisable for or convertible into shares of Common Stock Stock, Shares, Warrants or Units (other than as contemplated by this Agreement with respect to the Common SharesUnits and other than a registration statement on Form S-8 with respect to any stock option plan, stock bonus or other stock plan or arrangement described in the Prospectus); provided, however, that the Company may (i) issue shares of Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of Common Stock upon the exercise of options, in both cases, pursuant to any stock option option, stock bonus or other stock plan or arrangement described in the Prospectus, and the Company may issue shares of its Common Stock or options to directors in payment of annual directors' fees pursuant to the Company's Directors' Stock Ownership Planpurchase its Common Stock, (iii) issue shares of or Common Stock to directors and officers under compensatory arrangements consistent with upon exercise of options, but only if the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient holders of such shares, options, or shares enters into a lock-up agreement with terms substantially equivalent to the lock-up agreements delivered to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable issued upon conversion of the Company's 8% convertible subordinated debentures outstanding on the date hereof, and (viii) issue up to $70 million of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment or supplement thereto and issue shares of Common Stock issuable upon conversion exercise of such newly issued convertible subordinated debentures.options, agree in writing not to sell, offer, dispose of or otherwise transfer any such shares or options during such 180 day period without the prior written consent of Stifel,
Appears in 1 contract
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 180th day following the date of the Prospectus, the Company and the Operating Partnership will not, without the prior written consent of the Representative Representatives (which consent may not be unreasonably withheldwithheld at the sole discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "“put equivalent position" ” within the meaning of Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares Shares of Common StockBeneficial Interest, options or warrants to acquire shares Shares of Common Stock Beneficial Interest or securities exchangeable or exercisable for or convertible into shares Shares of Common Stock Beneficial Interest (including Partnership Units) (other than as contemplated by this Agreement with respect to the Common Shares); provided, however, that the Company may issue Shares of Beneficial Interest, Partnership Units or options or warrants to purchase its Shares of Beneficial Interest, or Shares of Beneficial Interest upon conversion of Partnership Units or exercise of options or warrants, (i) issue shares of Common Stock upon the exercise of warrants outstanding on the date hereof and pursuant to any share option, share bonus or other incentive plan or arrangement described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of Common Stock upon in connection with the exercise of optionsFormation Transactions, in both cases, pursuant to any stock option plan or arrangement described in the Prospectus, and issue shares of Common Stock to directors in payment of annual directors' fees pursuant to the Company's Directors' Stock Ownership Plan, (iii) issue shares as consideration for the acquisition of Common Stock to directors and officers under compensatory arrangements consistent with assets but only if the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient holders of such shares, Partnership Units, options, or shares enters into a lock-up agreement with terms substantially equivalent to the lock-up agreements delivered to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable issued upon conversion of Partnership Units or exercise of such options or warrants, agree in writing not to sell, offer, dispose of or otherwise transfer any such shares, Partnership Units or options or warrants during such 180 day period without the Company's 8% convertible subordinated debentures outstanding prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives). Notwithstanding the foregoing, if (x) during the last 17 days of the 180-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or (y) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the date hereof, and (viii) issue up to $70 million last day of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant 180-day period, the restrictions imposed in this clause shall continue to apply until the Company's registration statement expiration of the 18-day period beginning on Form S-4 (Registration No. 333-72208) and any amendment the issuance of the earnings release or supplement thereto and issue shares the occurrence of Common Stock issuable upon conversion of such newly issued convertible subordinated debenturesthe material news or material event.
Appears in 1 contract
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 180th day following the date of the Prospectus, the Company will not, without the prior written consent of the Representative Piper and BAS (which consent may not be unreasonably withheldwithheld at the sole discretion of Piper and BAS), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "“put equivalent position" ” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock or publicly announce the intention to do any of the foregoing (other than as contemplated by this Agreement with respect to the Common Shares); provided, however, that the Company may (ia) issue shares of its Common Stock or options to purchase its Common Stock, or Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of Common Stock upon the exercise of options, in both casesor warrants, pursuant to any warrant, stock option option, stock bonus or other stock plan or arrangement described in the Prospectus, but only if (i) the holders of such warrants, shares, options, or shares issued upon exercise of such warrants or options have executed a lock up agreement in the form of Exhibit E hereto or (ii) such warrants, shares, options or shares issued upon exercise of such warrants or options are not exercisable by their terms during the period commencing on the date hereof and issue ending on the 180th day following the date of the Prospectus, as such period may be extended pursuant to this Section 3A(l), or (b) file a registration statement on Form S-8 with respect to the shares of Common Stock subject to directors in payment of annual directors' fees the stock options issued or to be issued pursuant to any stock option, stock bonus or other stock plan or arrangement described in the Company's Directors' Stock Ownership PlanProspectus, or (iiic) issue shares of its Common Stock or options to directors and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of purchase its Common Stock to the Company's officers under extent the Company's incentive award planCompany is required to do so in connection with the transactions contemplated by each of the Note Contribution and Exchange Agreement, dated as of April 4, 2005 (vifiled as Exhibit 2.3 to the Registration Statement) issue shares and the Agreement and Plan of Common Stock in payment Merger, dated as of all April 4, 2005 (filed as Exhibit 2.1 to the Registration Statement). Notwithstanding the foregoing, if (x) during the last 17 days of the 180-day restricted period the Company issues an earnings release or material news or a portion material event relating to the Company occurs, or (y) prior to the expiration of the purchase price for properties acquired from sellers who are not affiliates 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Company; provided that each recipient of such shares enters into a lock180-up agreement with terms substantially equivalent day period, the restrictions imposed in this clause shall continue to apply until the lock-up agreements delivered to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion expiration of the Company's 8% convertible subordinated debentures outstanding 18-day period beginning on the date hereof, and (viii) issue up to $70 million issuance of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to earnings release or the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment occurrence of the material news or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debenturesmaterial event.
Appears in 1 contract
Sources: Underwriting Agreement (Ev3 Inc.)
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days following the date of the Prospectus, the Company will not, without the prior written consent of the Representative FBW (which consent may not be unreasonably withheldwithheld at the sole discretion of FBW), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "“put equivalent position" ” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common Shares); provided, however, that the Company may (i) issue shares of Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of Common Stock upon the exercise of options, in both cases, pursuant to any stock option plan or arrangement described in the Prospectus, and issue shares of Common Stock to directors in payment of annual directors' fees pursuant to the Company's Directors' Stock Ownership Plan, (iii) issue shares of Common Stock to directors and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (viv) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vior securities convertible into Common Stock) issue shares of Common Stock in payment of all or a portion of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient of such shares enters into a lock-up agreement with terms substantially equivalent to the lock-up agreements delivered to the Representative pursuant to Section 6(i5(h), (v) file amendments and/or supplements to the Company’s previously filed registration statement relating to the Company’s July 2000 offering of 300,000 units consisting of shares of common stock and warrants for the purpose of updating any prospectus forming a part of such registration statement, (vi) issue shares of Common Stock under the circumstances and in the manner contemplated under the Agreement to Remodel Office Building in Exchange for Stock, dated November 6, 2000, among the Arlington Building Partnership, AmeriVest Properties Texas Inc., Woodhaven Management Corporation, M▇▇▇▇▇▇ 2000, LLC and the Company and (vii) issue shares of Common Stock issuable upon conversion exercise of its option to purchase units of Keystone AmeriVest LLC, as described in the Company's 8% convertible subordinated debentures outstanding on the date hereof, and (viii) issue up to $70 million of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debenturesProspectus.
Appears in 1 contract
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 90th day following the date of the ProspectusProspectus (the "Restricted Period"), the Company will not, without the prior written consent of the Representative BAS (which consent may not be unreasonably withheldwithheld at the sole discretion of BAS), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common Shares); provided, however, that the Company may (i) issue shares of its Common Stock or options to purchase its Common Stock, or Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of Common Stock upon the exercise of options, in both cases, pursuant to any stock option option, stock bonus, stock purchase or other stock plan or arrangement described in the Prospectus, and issue shares of Common Stock to directors in payment of annual directors' fees pursuant to but only if the Company's Directors' Stock Ownership Plan, (iii) issue shares of Common Stock to directors and officers under compensatory arrangements consistent with Company does not permit the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient holders of such shares, options, or shares enters into issued upon exercise of such options to sell, offer, dispose of or otherwise transfer any such shares or options during the period that is 30 days from the date of this Agreement (or 90 days with respect to persons or entities which have executed a lock-up agreement with terms substantially equivalent to in the lock-up agreements delivered to form attached as Exhibit C) without the Representative prior written consent of BAS (which consent may be withheld at the sole discretion of the BAS); provided, however, that stock options issued pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion one of the Company's 8% convertible subordinated debentures outstanding on foregoing plans and which are issued during the date hereofRestricted Period but are not exercisable during the Restricted Period, and (viii) issue up shall not be subject to $70 million of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debenturesthis Section 3(m).
Appears in 1 contract
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 90th day following the date of the Prospectusthis Agreement, the Company will not, without the prior written consent of the Representative Representatives (which consent may not be unreasonably withheldwithheld at the sole discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "“put equivalent position" ” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common Shares)Stock; provided, however, that the Company may may:
(i1) issue shares of Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of its Common Stock upon the exercise of options, in both cases, pursuant to any stock option plan warrants or arrangement similar securities outstanding as of the date hereof and described in the Time of Sale Prospectus or upon the conversion of securities outstanding as of the date hereof;
(2) grant options to purchase shares of its Common Stock pursuant to its benefit plans described in the Time of Sale Prospectus, and issue shares provided that (i) such options do not vest, in whole or in part, during such 90-day period or (ii) the recipients of Common Stock such grant agrees to directors be bound by the restrictions described in payment of annual directors' fees pursuant this Section 3(k); or
(3) offer, sell, contract to the Company's Directors' Stock Ownership Plan, (iii) issue shares of Common Stock to directors and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) sell or issue shares of Common Stock in payment of all connection with the acquisition of, or merger with, another company, provided that, in each case described in clauses (1) through (3) above, it shall be a portion of pre-condition to any such issuance, grant, sale, offer, transfer or other disposition that the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient holder of such shares, options, or shares enters into issued upon exercise of such options or warrants, agree in writing to be bound by the terms of a lock-up agreement with terms substantially equivalent to the same extent as if such holder were a party hereto (and that the execution and delivery by such holder of a lock-up agreements delivered agreement substantially in the form attached hereto as Exhibit D shall satisfy such condition) and no filing by any party (donor, donee, transferor or transferee) under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the 90-day period referred to above. The foregoing restrictions shall not apply to (i) the Common Shares being offered and sold pursuant to the Representative pursuant terms of this Agreement or (ii) transactions by any person other than the Company relating to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion acquired in open market transactions after the completion of the Company's 8% convertible subordinated debentures outstanding offering of the Common Shares contemplated by this Agreement. Notwithstanding the foregoing, if (x) during the last 17 days of the 90-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs; or (y) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the date hereof, and (viii) issue up to $70 million last day of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant 90-day period; the restrictions imposed in this clause (j) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event; provided however, that this sentence shall not apply if the research published or distributed on the Company is compliant under Rule 139 of the Securities Act and the Company's registration statement on Form S-4 (Registration No. 333-72208’s securities are actively traded as defined in Rule 101(c)(1) and any amendment or supplement thereto and issue shares of Common Stock issuable upon conversion Regulation M of such newly issued convertible subordinated debenturesthe Exchange Act.
Appears in 1 contract
Sources: Underwriting Agreement (Walter Industries Inc /New/)
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 180th day following the date of the Prospectus, the Company will not, without the prior written consent of the Representative BAS and Citigroup (which consent may not be unreasonably withheldwithheld at the sole discretion of BAS and Citigroup), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common SharesShares or pursuant to the registration statement on Form S-11 (File No. 333-116408), including amendments thereto, covering the resale of up to 37,404,862 shares of the Company's Common Stock issued in connection with private offerings of its Common Stock completed in December 2003 and January 2004); provided, however, that the Company may (i) issue shares of its Common Stock or options to purchase its Common Stock, or Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of Common Stock upon the exercise of options, in both cases, pursuant to any stock option option, stock bonus or other stock plan or arrangement described in the Prospectus, but only if the holders of such shares, options, or shares issued upon exercise of such options, agree in writing not to sell, offer, dispose of or otherwise transfer any such shares or options during such 180 day period without the prior written consent of BAS and issue shares Citigroup (which consent may be withheld at the sole discretion of Common Stock to directors in payment the BAS and Citigroup). Notwithstanding the foregoing, if (x) during the last 17 days of annual directors' fees pursuant the 180-day restricted period the Company issues an earnings release or material news or a material event relating to the Company's Directors' Stock Ownership PlanCompany occurs, or (iiiy) issue shares of Common Stock to directors and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion expiration of the purchase price for properties acquired from sellers who are not affiliates 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Company; provided that each recipient of such shares enters into a lock180-up agreement with terms substantially equivalent day period, the restrictions imposed in this clause shall continue to apply until the lock-up agreements delivered to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion expiration of the Company's 8% convertible subordinated debentures outstanding 18-day period beginning on the date hereof, and (viii) issue up to $70 million issuance of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to earnings release or the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment occurrence of the material news or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debenturesmaterial event.
Appears in 1 contract
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 90th day following the date of the ProspectusProspectus (the "Restricted Period"), the Company will not, without the prior written consent of the Representative BAS (which consent may not be unreasonably withheldwithheld at the sole discretion of BAS), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common Shares); provided, however, that the Company may (i) issue shares of its Common Stock or options to purchase its Common Stock, or Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of Common Stock upon the exercise of options, in both cases, pursuant to any stock option option, stock bonus, stock purchase or other stock plan or arrangement described in the Prospectus, and issue shares of Common Stock to directors in payment of annual directors' fees pursuant to but only if the Company's Directors' Stock Ownership Plan, (iii) issue shares of Common Stock to directors and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient holders of such shares, options, or shares enters into issued upon exercise of such options, agree in writing not to sell, offer, dispose of or otherwise transfer any such shares or options during the period that is 30 days from the date of this Agreement (or 90 days with respect to persons or entities which have executed a lock-up agreement with terms substantially equivalent to in the lock-up agreements delivered to form attached as Exhibit C) without the Representative prior written consent of BAS (which consent may be withheld at the sole discretion of the BAS); provided, however, that stock options issued pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion one of the Company's 8% convertible subordinated debentures outstanding on foregoing plans and which are issued during the date hereofRestricted Period but are not exercisable during the Restricted Period, and (viii) issue up shall not be subject to $70 million of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debenturesthis Section 3(m).
Appears in 1 contract
Agreement Not to Offer or Sell Additional Securities. During the period of ---------------------------------------------------- 90 days commencing on the date hereof and ending on the 90th day following the date of the Prospectus, the Company will not, without the prior written consent of the Representative BAS (which consent may not be unreasonably withheldwithheld at the sole discretion of BAS), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common Shares); provided, however, that the Company may (i) issue shares of its Common Stock or options to purchase its Common Stock, or Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase Common Stock and issue shares of Common Stock upon the exercise of options, in both cases, pursuant to any stock option option, stock bonus or other stock plan or arrangement described in the Prospectus, but only if the executive officers and issue directors that are holders of such shares, options, or shares issued upon exercise of Common Stock such options, agree in writing not to directors sell, offer, dispose of or otherwise transfer any such shares or options during such 90 day period without the prior written consent of BAS (which consent may be withheld at the sole discretion of the BAS). Notwithstanding the foregoing, if (x) during the last 17 days of the 90-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs; or (y) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period; the restrictions imposed in payment this clause (m) shall continue to apply until the expiration of annual directors' fees pursuant to the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event; provided however, that this sentence shall not apply if the research published or distributed on the Company is compliant under Rule 139 of the Securities Act and the Company's Directors' Stock Ownership Plan, (iiisecurities are actively traded as defined in Rule 101(c)(1) issue shares of Common Stock to directors and officers under compensatory arrangements consistent with the Company's prior practices, (iv) issue shares of Common Stock under the DRIP, (v) issue shares of Common Stock to the Company's officers under the Company's incentive award plan, (vi) issue shares of Common Stock in payment of all or a portion Regulation M of the purchase price for properties acquired from sellers who are not affiliates of the Company; provided that each recipient of such shares enters into a lock-up agreement with terms substantially equivalent to the lock-up agreements delivered to the Representative pursuant to Section 6(i), (vii) issue shares of Common Stock issuable upon conversion of the Company's 8% convertible subordinated debentures outstanding on the date hereof, and (viii) issue up to $70 million of the Company's newly issued convertible subordinated debentures due 2009 and/or preferred stock pursuant to the Company's registration statement on Form S-4 (Registration No. 333-72208) and any amendment or supplement thereto and issue shares of Common Stock issuable upon conversion of such newly issued convertible subordinated debenturesExchange Act.
Appears in 1 contract