Agreement to Act as Placement Agent; Delivery and Payment. Upon satisfaction of the conditions set forth in Section 8 hereof, the closing of the sale and issuance of the Shares (the "Closing") shall occur at the offices of Bass, Berry & Sims PLC, 100 Peabody Place, Suite 900, Memphis, Tennessee 381▇▇, ▇r a▇ ▇▇ch oth▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇pany (the "Place of Closing"), at 10:00 a.m., Memphis time, on February 15, 2006, or at such other time and date not later than 5 full business days thereafter as you and the Company may agree, such time and date of payment and delivery being herein called the "Closing Date." The delivery of the Shares shall be made to the respective accounts of the Investors against payment by the Investors of the purchase price thereof (the "Requisite Funds") to the Placement Agent, as agent, and not as principal, on behalf of the Company by Federal Funds wire transfer payable in same day funds. The Placement Agent shall then immediately transfer the Requisite Funds, less the Placement Fee and any expenses of the Placement Agent for which the Company is obligated to reimburse pursuant to this Agreement, to the Company by Federal Funds wire transfer payable in same day funds. The delivery of the Shares to the Investors shall be made, at the option of the Placement Agent, either through the facilities of The Depository Trust Company (the "DTC") or by certificated securities. If the Placement Agent elects to deliver certificated securities, the Company will deliver definitive certificates for the Shares at the office of A.G. Edwards & Sons, Inc., 77 Water Street, New York, New York ("Edwar▇▇' ▇▇▇▇▇▇"), or such other ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇utu▇▇▇▇ ▇▇ree upon. The certificates for the Shares so to be delivered will be made available to you for inspection at Edwards' Office (or such other place as you and the Company may mutual▇▇ ▇▇▇▇e upon) at least one full business day prior to the Closing Date and will be registered in such names and denominations as you may request at least forty-eight hours prior to the Closing Date. The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, financial advisor or agent, and any duties of the Placement Agent with respect to investment banking services to the Company, including the offering of the Shares contemplated hereby (including in connection with determining the terms of the offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party disclaims any intention to impose any fiduciary or similar duty on the other. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be on behalf of the Company or any other person. It is understood that the offering price, including the volume discount to Investors purchasing at least 200,000 Shares, was arrived at through arms-length negotiations between the Company and the several Investors; and that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the offering. Notwithstanding anything in this Placement Agent Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the offering contemplated hereby that are not limited to the Placement Fee. It is understood that the Company proposes to offer the Shares to the Investors upon the terms and conditions set forth in the Registration Statement.
Appears in 1 contract
Agreement to Act as Placement Agent; Delivery and Payment. Upon satisfaction On the basis of the representations, warranties and agreements contained in, and subject to the terms and conditions set forth of, this Agreement:
(a) The Placement Agents agree to act as the Company’s exclusive placement agents in Section 8 hereofconnection with the issuance and sale, on a reasonable efforts basis, by the closing of the sale and issuance Company of the Shares to the Investors. The Company acknowledges and agrees that the Placement Agents’ engagement hereunder is not an agreement by the Placement Agents or any of their affiliates to underwrite or purchase any securities or otherwise provide any financing. As compensation for their services hereunder, the Company agrees to pay on the Closing Date (as defined below) the Placement Agents by wire transfer of immediately available funds 6.5% of the proceeds received by the Company from the sale of the Shares.
(b) Payment of the purchase price for, and delivery of the Shares shall be made at a closing (the "“Closing"”) shall occur at the offices of BassSkadden, Berry & Sims PLCArps, 100 Peabody PlaceSlate, Suite 900, Memphis, Tennessee 381▇▇, ▇r a▇ ▇▇ch oth▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇pany (the "Place of Closing")LLP, at 10:00 9:00 a.m., Memphis New York time, on February 15the Closing Date to take place on the third or fourth business day (as permitted under Rule 15c6-1 under the Securities Exchange Act of 1934, 2006, or at such other time and date not later than 5 full business days thereafter as you and amended (the Company may agree, “Exchange Act”)) after the determination of the sales price of the Shares (such time and date of payment and delivery being herein called the "“Closing Date”). All actions taken at the Closing shall be deemed to have occurred simultaneously." The delivery
(c) Payment of the purchase price for the Shares shall be made to the respective accounts of the Investors against payment by the Investors of directly to or upon the purchase price thereof (the "Requisite Funds") to the Placement Agent, as agent, and not as principal, on behalf order of the Company by Federal Funds wire transfer payable in same day funds. The Placement Agent shall then immediately transfer the Requisite Funds, less the Placement Fee and any expenses of the Placement Agent for which the Company is obligated to reimburse pursuant to this Agreement, available funds to the Company by Federal Funds wire transfer payable in same day funds. The Company, upon delivery of the Shares to the Investors shall be made, at the option of the Placement Agent, either through the facilities of The Depository Trust Company (the "DTC") or by certificated securities. If the Placement Agent elects to deliver certificated securitiesCompany, the Company will deliver definitive certificates for the Shares at the office of A.G. Edwards & Sons, Inc., 77 Water Street, New York, New York ("Edwar▇▇' ▇▇▇▇▇▇"), or such other ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇utu▇▇▇▇ ▇▇ree upon. The certificates for the Shares so to be delivered will be made available to you for inspection at Edwards' Office (or such other place as you and the Company may mutual▇▇ ▇▇▇▇e upon) at least one full business day prior to the Closing Date Investors, and will shall be registered in such name or names and denominations shall be in such denominations, as you the Investors may request at least forty-eight hours prior to one business day before the Closing Date. .
(d) The several purchases of the Shares by the Investors shall be evidenced by the execution of one or more purchase agreements each substantially in the form attached hereto as Exhibit A (the “Purchase Agreement”).
(e) Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing Date, the Company acknowledges and agrees that shall not, without the Placement Agent shall act as an independent contractor, and not as a fiduciary, financial advisor or agent, and any duties prior consent of the Placement Agent with respect Agents, solicit or accept offers to investment banking services purchase Shares (other than pursuant to the Company, including exercise of options or warrants to purchase shares of Common Stock that are outstanding at the offering of the Shares contemplated hereby (including in connection with determining the terms of the offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party disclaims any intention to impose any fiduciary or similar duty on the other. Additionally, date hereof) otherwise than through the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be on behalf of the Company or any other person. It is understood that the offering price, including the volume discount to Investors purchasing at least 200,000 Shares, was arrived at through arms-length negotiations between the Company and the several Investors; and that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the offering. Notwithstanding anything in this Placement Agent Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the offering contemplated hereby that are not limited to the Placement Fee. It is understood that the Company proposes to offer the Shares to the Investors upon the terms and conditions set forth in the Registration StatementAgents.
Appears in 1 contract
Agreement to Act as Placement Agent; Delivery and Payment. Upon satisfaction On the basis of the representations, warranties and agreements contained in, and subject to the terms and conditions set forth of, this placement agency agreement (this “Agreement”):
(a) The Placement Agent agrees to act as the Company’s exclusive placement agent in Section 8 hereofconnection with the issuance and sale, on a reasonable efforts basis, by the closing of the sale and issuance Company of the Shares to the Investors. The Company acknowledges and agrees that the Placement Agent’s engagement hereunder is not an agreement by the Placement Agent or any of its affiliates to underwrite or purchase any securities or otherwise provide any financing. As compensation for their services hereunder, the Company agrees to pay on the Closing Date (as defined below) to the Placement Agent by wire transfer of immediately available funds 3.5% of the proceeds received by the Company from the sale of the Shares.
(b) Delivery of the Shares shall be made at a closing (the "“Closing"”) shall occur at the offices of Bass, Berry & Sims PLC, 100 Peabody Place, Suite 900, Memphis, Tennessee 381▇▇, ▇r a▇ ▇▇ch oth▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇pany (the "Place of Closing")& Eveson, P.A., at 10:00 a.m., Memphis eastern time, on February 15the Closing Date to take place on the third or fourth business day (as permitted under Rule 15c6-1 under the Securities Exchange Act of 1934 (the “1934 Act”)), 2006as mutually agreed by the parties, or at such other time and date not later than 5 full business days thereafter as you and after the Company may agree, determination of the sales price of the Shares (such time and date of payment and delivery being herein called the "“Closing Date”). All actions taken at the Closing shall be deemed to have occurred simultaneously." The delivery
(c) Payment of the purchase price for the Shares shall be made to the respective accounts of the Investors against payment by the Investors of the purchase price thereof (the "Requisite Funds") to the Placement Agent, as agent, and not as principal, on behalf of the Company by Federal Funds wire transfer payable in same day funds. The Placement Agent shall then immediately transfer the Requisite Funds, less the Placement Fee and any expenses of the Placement Agent for which the Company is obligated to reimburse pursuant to this Agreement, directly to the Company by Federal Funds wire transfer payable in same day funds. The immediately available funds to Bridge Bancorp, Inc., upon delivery of the Shares to the Investors shall be made, at the option of the Placement Agent, either through the facilities of The Depository Trust Company (the "DTC") or by certificated securities. If the Placement Agent elects to deliver certificated securitiesCompany, the Company will deliver definitive certificates for the Shares at the office of A.G. Edwards & Sons, Inc., 77 Water Street, New York, New York ("Edwar▇▇' ▇▇▇▇▇▇"), or such other ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇utu▇▇▇▇ ▇▇ree upon. The certificates for the Shares so to be delivered will be made available to you for inspection at Edwards' Office (or such other place as you and the Company may mutual▇▇ ▇▇▇▇e upon) at least one full business day prior to the Closing Date Investors, and will shall be registered in such name or names and denominations shall be in such denominations, as you the Investors may request at least fortyone business day before the Closing Date.
(d) The several purchases of the Shares by the Investors shall be evidenced by the execution of one or more purchase agreements each substantially in the form attached hereto as Exhibit A (each, a “Purchase Agreement” and, collectively, the “Purchase Agreements”).
(e) Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing Date, the Company shall not, without the prior consent of the Placement Agent, solicit or accept offers to purchase Shares (other than pursuant to the exercise of options or warrants to purchase shares of Common Stock that are outstanding at the date hereof) otherwise than through the Placement Agent.
(a) The Company represents and warrants to the Placement Agent as of the date hereof, and as of the Closing Date, as follows:
(i) The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “1933 Act”) with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-eight hours 160240), in respect of the Company’s Common Stock (including the Shares) not earlier than three years prior to the date hereof; such registration statement, and any post-effective amendment thereto, became effective on July 10, 2009; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Company, threatened by the Commission, and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act has been received by the Company (the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Base Prospectus”; the various parts of such registration statement, including all exhibits thereto and any prospectus supplement relating to the Shares that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement pursuant to the 1933 Act, each as amended at the time such part of the registration statement became effective pursuant to the 1933 Act (the “Effective Date”), are hereinafter collectively called the “Registration Statement”; the prospectus supplement specifically relating to the Shares prepared and filed with the Commission pursuant to Rule 424(b) under the 1933 Act is hereinafter called the “Prospectus Supplement”; the Base Prospectus, as amended and supplemented by the Prospectus Supplement, is hereinafter called the “Prospectus”; any reference herein to the Base Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act; any reference to any amendment or supplement to the Base Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Shares filed with the Commission pursuant to Rule 424(b) under the 1933 Act and any documents filed under the 1934 Act and incorporated therein, in each case after the date of the Base Prospectus, the Prospectus Supplement or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual, quarterly, or current report of the Company filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the 1933 Act relating to the Shares is hereinafter called an “Issuer Free Writing Prospectus”).
(ii) On the Effective Date, the Registration Statement complied, and on the date of the Prospectus, the date any post-effective amendment to the Registration Statement becomes effective, the date any supplement or amendment to the Prospectus is filed with the Commission and the Closing Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the requirements of the 1933 Act and the published rules and regulations thereunder (the “Rules”) adopted by the Commission and the 1934 Act and the rules and regulations of the Commission thereunder. The Registration Statement did not, as of the Effective Date, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the Effective Date and the other dates referred to in the first sentence of this paragraph 2(a)(ii) above, neither the Registration Statement nor any amendment thereof or supplement thereto, contained or will contain any untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(iii) No order preventing or suspending the use of the Base Prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and the Base Prospectus and the Prospectus Supplement, at the time of filing thereof, conformed in all material respects to the requirements of the 1933 Act and the Rules and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iv) For the purposes of this Agreement, the “Applicable Time” means, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement. The Base Prospectus, Prospectus Supplement, the Prospectus, and the applicable Issuer Free Writing Prospectus(es) issued at or prior to such Applicable Time, taken together (collectively, and, with respect to any Shares, together with the public offering price of such Shares and the aggregate number of Shares up to which the Company will offer, the “General Disclosure Package”) as of each Applicable Time and the Closing Date, did not and will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each applicable Issuer Free Writing Prospectus will not conflict with the information contained in the Registration Statement, the Prospectus Supplement or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the General Disclosure Package as of such Applicable Time, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(v) The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder, and, when read together with the other information in the General Disclosure Package and the Prospectus, (a) at and as of the time the Registration Statement became effective, (b) at and as of the Applicable Time, (c) at and as of the time the Prospectus was issued and (d) at and as of the Closing Date, as applicable, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(vi) [Reserved]
(vii) This Agreement and each Purchase Agreement have been duly authorized, executed and delivered by the Company, and, assuming due authorization, execution and delivery by each other party hereto, constitutes a valid, legal, and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally, and subject to general principles of equity. The Company acknowledges has full power and agrees that the Placement Agent shall act as an independent contractorauthority to enter into this Agreement and each Purchase Agreement and to authorize, issue and not as a fiduciary, financial advisor or agent, and any duties of the Placement Agent with respect to investment banking services to the Company, including the offering of sell the Shares as contemplated hereby (including in connection with determining by this Agreement; and all action required to be taken for the terms due and proper authorization, execution and delivery by it of this Agreement and each Purchase Agreement and the offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party disclaims any intention to impose any fiduciary or similar duty on the other. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal consummation by it of the transactions contemplated herebyhereby has been duly and validly taken;
(viii) Neither the Company nor any of its subsidiaries has sustained since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package, and the Placement Agent shall Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Registration Statement, the General Disclosure Package, and the Prospectus or as would not have no responsibility nor be reasonably expected to have a Material Adverse Effect; and, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as set forth or liability to the Company with respect thereto. Any review by the Placement Agent contemplated in each of the CompanyRegistration Statement, the transactions contemplated hereby or other matters relating to such transactions has been General Disclosure Package and will be performed solely for the benefit of the Placement Agent and Prospectus, (A) there has not been and shall not be on behalf any change in the capital stock or long-term debt of the Company or any other person. It is understood that of its subsidiaries or any material adverse change in or affecting the offering pricebusiness, including the volume discount to Investors purchasing at least 200,000 Sharesfinancial position, was arrived at through arms-length negotiations between stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”), (B) there have been no transactions entered into by the several Investors; and that Company or any of its subsidiaries, other than those in the Placement Agent has not and will not be rendering an opinion ordinary course of business, which are material with respect to the Company and its subsidiaries, taken as a whole, and (C) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock;
(ix) The Company and its subsidiaries have good and marketable title in fee simple to all real property material to the respective businesses of the Company and its subsidiaries and good and marketable title to all personal property material to the respective businesses of the Company and its subsidiaries owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in each of the General Disclosure Package and the Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries or such as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and any real property and buildings held under lease by the Company and its subsidiaries and material to the respective businesses of the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries or would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and the Company and its subsidiaries have valid and marketable rights to lease or otherwise use all items of personal property material to the respective businesses of the Company and its subsidiaries, free and clear of all liens, encumbrances, claims and defects, except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
(x) The Company is a registered bank holding company under the Bank Holding Company Act of 1956, as amended, and has been duly incorporated and is validly existing under the laws of the State of New York, with power and authority (corporate and other) to own its properties and conduct its business as described in each of the General Disclosure Package and the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing (where such concept is recognized) under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the fairness failure to so qualify or be in good standing does not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(xi) Each subsidiary of the terms Company either has been duly organized and is validly existing as a corporation or business trust, or has been duly chartered and is validly existing as a national banking association, in each case in good standing (where such concept is recognized) under the laws of the offering. Notwithstanding anything jurisdiction of its organization, with power and authority (corporate and other) to own its properties and conduct its business as described in this Placement Agent Agreement each of the General Disclosure Package and the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing (where such concept is recognized) under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to so qualify or be in good standing does not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the activities of the subsidiaries of The Bridgehampton National Bank, a national banking association (the “Bank”), are permitted to subsidiaries of a national banking association under applicable law, and the deposit accounts of the Bank are insured up to the contrary, applicable limits by the Company acknowledges that the Placement Agent may have financial interests in the success of the offering contemplated hereby that are not limited to the Placement Fee. It is understood that the Company proposes to offer the Shares to the Investors upon the terms and conditions set forth in the Registration Statement.Federal Deposit Insurance Corporatio
Appears in 1 contract
Agreement to Act as Placement Agent; Delivery and Payment. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Placement Agent agrees to act as the Company's exclusive placement agent to assist the Company, on a best efforts basis, in connection with the proposed issuance and sale by the Company of the Shares to the Investor. The Company expressly acknowledges and agrees that this Agreement does not in any way constitute a commitment by the Placement Agent to purchase any of the Shares and does not ensure successful placement of the Shares or any portion thereof. The Company shall pay to the Placement Agent concurrently with the Closing (as defined below) 1.75% of the gross purchase price of the Shares (the "Placement Fee"). Upon satisfaction of the conditions set forth in Section 8 5 hereof, the closing of the sale and issuance of the Shares (the "Closing") shall occur at the offices of Bass, Berry & Sims PLC, 100 Peabody Place, Suite 900, Memphis, Tennessee 381▇▇, ▇r a▇ ▇▇ch oth▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇pany & Mugel, LLP, or at such other place as may be agreed upon between you and the Company (the "Place of Closing"), at 10:00 8:00 a.m., Memphis central time, on February 15November 18, 20062003, or at such other time and date not later than 5 four full business days thereafter as you and the Company may agree, such time and date of payment and delivery being herein called the "Closing Date." The delivery of the Shares shall be made to the respective accounts of the Investors against payment by the Investors of the purchase price thereof (the "Requisite Funds") to the Placement Agent, as agent, and not as principal, Agent on behalf of the Company by Federal Funds wire transfer payable in same day fundsthrough the ID System of The Depository Trust Company (the "DTC"). The Placement Agent shall then immediately transfer the Requisite Funds, less the Placement Fee and any expenses of the Placement Agent for which the Company is obligated to reimburse pursuant to this Agreementreimburse, to the Company by Federal Funds wire transfer payable in same day funds. The delivery of the Shares to the Investors shall be made, at the option of the Placement Agent, either made through the facilities of The Depository Trust Company (the "DTC") or by certificated securities. If the Placement Agent elects to deliver certificated securities, the Company will deliver definitive certificates for the Shares at the office of A.G. Edwards & Sons, Inc., 77 Water Street, New York, New York ("Edwar▇▇' ▇▇▇▇▇▇"), or such other ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇utu▇▇▇▇ ▇▇ree upon. The certificates for the Shares so to be delivered will be made available to you for inspection at Edwards' Office (or such other place as you and the Company may mutual▇▇ ▇▇▇▇e upon) at least one full business day prior to the Closing Date and will be registered in such names and denominations as you may request at least forty-eight hours prior to the Closing Date. The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, financial advisor or agent, and any duties of the Placement Agent with respect to investment banking services to the Company, including the offering of the Shares contemplated hereby (including in connection with determining the terms of the offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party disclaims any intention to impose any fiduciary or similar duty on the other. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be on behalf of the Company or any other person. It is understood that the offering price, including the volume discount to Investors purchasing at least 200,000 Shares, was arrived at through arms-length negotiations between the Company and the several Investors; and that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the offering. Notwithstanding anything in this Placement Agent Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the offering contemplated hereby that are not limited to the Placement Fee. It is understood that the Company proposes to offer the Shares to the Investors upon the terms and conditions set forth in the Registration StatementProspectus (as defined below).
Appears in 1 contract
Sources: Placement Agency Agreement (Eastgroup Properties Inc)