Transaction Notices. (a) The Company may, from time to time during the Term, propose to the Agent that they enter into an Agency Transaction or Principal Transaction to be executed on a specified Exchange Business Day. If the Agent agrees to the terms of such proposed Transaction or if the Company and the Agent mutually agree to modified terms for such proposed Transaction, then the Agent shall promptly send to the Company a notice, substantially in the form of Exhibit A hereto (each, a “Transaction Notice”), confirming the agreed terms of such proposed Transaction. If the Company wishes such proposed Transaction to become a binding agreement between it and the Agent, the Company shall promptly indicate its acceptance thereof by countersigning and returning such Transaction Notice to the Agent or sending a written notice to the Agent (by any means permissible under Section 12 hereof) indicating its acceptance. The terms reflected in a Transaction Notice shall become binding on the Agent and the Company only if accepted by the Company no later than the times specified in Section 3(b) below. Each Transaction Notice shall specify, among other things: (i) whether the Transaction is an Agency Transaction or a Principal Transaction; (ii) the Exchange Business Day on which the Shares subject to such Agency or Principal Transaction are intended to be sold (the “Purchase Date”); (iii) the number of Shares that the Company intends to sell (the “Specified Number of Shares”) on such Purchase Date, which shall be no less than 5% and no more than 25% of the average daily trading volume in the Common Stock on the Exchange for the thirty (30) Exchange Business Days preceding the date of delivery of the Transaction Notice; (iv) whether the Company will grant the Agent the right to elect to purchase additional Shares in accordance with subsection (c) below; (v) in the case of a purchase of Shares by the Agent acting as principal, whether the Agent shall have the option referred to in Section 3(c) below to increase the number of Shares to be sold by the Company and purchased by the Agent acting as principal on such Purchase Date; and (vi) the minimum price (if any) below which no sale of Shares shall be made (a “Floor Price”).
Appears in 1 contract
Transaction Notices. (a) The Company may, from time to time during the Term, propose to the Agent that they enter into an Agency Transaction or Principal Transaction to be executed on a specified Exchange Business Day. If the Agent agrees to the terms of such proposed Transaction or if the Company and the Agent mutually agree to modified terms for such proposed Transaction, then the Agent shall promptly send to the Company a notice, substantially in the form of Exhibit A hereto (each, a “Transaction Notice”), confirming the agreed terms of such proposed Transaction. If the Company wishes such proposed Transaction to become a binding agreement between it and the Agent, the Company shall promptly indicate its acceptance thereof by countersigning and returning such Transaction Notice to the Agent or sending a written notice to the Agent (by any means permissible under Section 12 hereof) indicating its acceptance; provided that the Agent may specify a time by which such acceptance must be received in order for the Agent to be bound thereby. The terms reflected in a Transaction Notice shall become binding on the Agent and the Company only if accepted by the Company no later than Company. In the times specified in Section 3(b) belowevent of a conflict between the terms of this Agreement and the terms of a Transaction Notice, the terms of the Transaction Notice will control. Each Transaction Notice shall specify, among other things:
(i) whether the Transaction is an Agency Transaction or a Principal Transaction;
(ii) the Exchange Business Day on which the Shares subject to such Agency or Principal Transaction are intended to be sold (the “Purchase Date”);
(iii) the minimum price, if any, at which Shares may be sold;
(iv) unless otherwise agreed by the parties, the number of Shares that the Company intends to sell (the “Specified Number of Shares”) on such Purchase Date, which shall be no less than 5% and no more than 25% of the average daily trading volume in the Common Stock on the Exchange for the thirty (30) Exchange Business Days preceding the date of delivery of the Transaction Notice;, except as otherwise agreed in writing by the Agent in its sole discretion; and
(ivv) whether the Company will grant the Agent the right to elect to purchase additional Shares in accordance with subsection (c) below;
(v) in the case of . A Transaction Notice shall not set forth a purchase Specified Number of Shares that, when added to the aggregate number of Shares previously purchased and to be purchased pursuant to pending Transaction Notices (if any) hereunder, results in a total that exceeds the Maximum Number of Shares. The Company shall have responsibility for maintaining records with respect to the aggregate principal amount of Shares sold, or for otherwise monitoring the availability of Shares for sale under the Registration Statement. The Company may propose only one Transaction and agree to only one Transaction Notice with respect to any Purchase Date. A Transaction Notice conforming to the foregoing requirements, once accepted by the Agent acting as principalCompany, whether shall be irrevocable (unless otherwise specified in such Transaction Notice), and the Company shall be obligated to sell the Specified Number of Shares (subject to increase pursuant to paragraph (c) below) and the Agent shall be obligated, subject to the terms of and satisfaction of the conditions set forth in this Agreement and such Transaction Notice, including but not limited to Section 1(e), to (x) in case of an Agency Transaction, use its commercially reasonable efforts to solicit offers for the Shares, and (y) in case of Principal Transactions, purchase such Shares in accordance with the terms and conditions of this Agreement and such Transaction Notice. Notwithstanding the foregoing, if the terms of any Agency or Principal Transaction contemplate that Shares shall be sold on more than one Purchase Date, then the Company and the Agent shall mutually agree to such additional terms and conditions as they deem necessary in respect of such multiple Purchase Dates, and such additional terms and conditions shall be set forth in the relevant Transaction Notice and be binding to the same extent as any other terms contained therein.
(b) Unless otherwise specified in a Transaction Notice, the Purchase Date in respect of the Shares deliverable pursuant to any Transaction Notice shall be the Exchange Business Day next following the date on which such Transaction Notice is accepted if such acceptance occurs by 4:30 p.m. (New York time on such acceptance date); provided that if a Transaction Notice is accepted prior to 8:30 a.m. (New York time) on an Exchange Business Day (or by such later time as the Agent may agree in its sole discretion), the Purchase Date in respect of such Shares shall be such date of acceptance. For Principal Transactions, the price per Share for the sale and purchase of any such Shares pursuant to this Agreement shall be the price per Share agreed upon between the Company and the Agent in the Transaction Notice, which price shall be based on the volume weighted average price of the Shares as reported by Bloomberg LP (the “Gross Sale Price”), less the Agent’s commission of 2.25% of the Gross Sale Price for all Shares sold and purchased as principal on such Purchase Date. For Agency Transactions, the commission shall be 2.25% of the Gross Sale Price.
(c) If specified in a Transaction Notice for a Principal Transaction, the Agent will have the option referred to in Section 3(celect, by notice to the Company delivered not later than 4:30 p.m. (New York time) below on the relevant Purchase Date, to increase the number of Shares to be sold by the Company and purchased by the Agent acting as principal on such Purchase Date, provided that such number of Shares to be sold by the Company shall not exceed two times the Specified Number of Shares; and
(vi) and provided further that such number of Shares to be sold by the minimum price Company, when added to the aggregate number of Shares previously purchased and to be purchased pursuant to pending Transaction Notices (if any) below which no sale hereunder, shall not exceed the Maximum Number of Shares. The Specified Number of Shares to be sold by the Company on any Purchase Date, as it may be increased pursuant to this paragraph (c), is hereinafter referred to as the “Purchased Number of Shares” in respect of such Purchase Date.
(d) Unless otherwise specified in a Transaction Notice, if the Purchased Number of Shares for any Purchase Date exceeds 50% of the total number of shares of Common Stock traded on the Exchange during regular trading hours on the Purchase Date, the Purchased Number of Shares shall be reduced to 50% of such total number of shares traded.
(e) Payment of the purchase price for Shares sold by the Company on any Purchase Date pursuant to a Transaction Notice shall be made to the Company by federal funds wire transfer to an account designated by the Company against delivery of such Shares to: (a x) the accounts specified in writing by the Agent for sales made by the Agent acting as agent, or (y) the Agent through the facilities of the Depository Trust Company for purchase from the Company by the Agent acting as principal. Such payment and delivery shall be made at or about 10:00 a.m., local time in New York, New York, on the third Exchange Business Day following each Purchase Date (the “Floor PriceClosing Date”). If the Company fails for any reason to make timely delivery of such Shares, the Company shall indemnify the Agent and its successors and assigns and hold them harmless from and against any loss, damage, expense, liability or claim that the Agent may incur as a result of such failure.
Appears in 1 contract
Transaction Notices. (a) The Company may, from time to time during the Term, propose to the Agent JPMS that they enter into an Agency Transaction or Principal Transaction Transaction, to be executed on a specified Exchange Business DayDay or over a specified period of Exchange Business Days. If the Agent JPMS agrees to the terms of such proposed Transaction or if the Company and the Agent JPMS mutually agree to modified terms for such proposed Transaction, then the Agent JPMS shall promptly send to the Company by the means set forth under Section 11 hereof a notice, substantially in the form of Exhibit A hereto (each, a “Transaction Notice”), confirming the agreed terms of such proposed Transaction. If the Company wishes such proposed Transaction to become a binding agreement between it and the AgentJPMS, the Company shall promptly indicate its acceptance thereof by countersigning and returning such Transaction Notice to the Agent JPMS or sending a written notice acceptance of such Transaction Notice to JPMS, in each case by the Agent (by any means permissible set forth under Section 12 11 hereof) indicating its acceptance. The terms reflected in a Transaction Notice shall become binding on the Agent JPMS and the Company only if accepted by the Company no later than the times specified in Section 3(b2(b) below. Each Transaction Notice shall specify, among other things:
(i) whether the Transaction is an Agency Transaction or a Principal Transaction;
(ii) the Exchange Business Day Day(s) on which the Shares subject to such Agency or Principal Transaction are intended to be sold (the each, a “Purchase Date”);
(iiiii) the maximum number of Shares that the Company intends to sell (the “Specified Number of Shares”) on on, or over the course of, such Purchase Date, which Date(s); provided that the number of Shares sold on each such Purchase Date shall be no less than 5% and no more than 25% of the average daily trading volume in the Common Stock on the Exchange for the thirty (30) 30 Exchange Business Days preceding the date of delivery of the Transaction Notice;
(iv) whether the Company will grant the Agent the right to elect to purchase additional Shares in accordance with subsection (c) below;
(v) in the case of a purchase of Shares by the Agent acting , or as principal, whether the Agent shall have the option referred to in Section 3(c) below to increase the number of Shares to be sold by otherwise agreed between the Company and purchased by the Agent acting as principal on such Purchase DateJPMS; and
(viiii) the minimum lowest price (if any) below at which no sale of the Company is willing to sell Shares shall be made on each such Purchase Date (each, a “Floor Price”). The Company shall have responsibility for maintaining records with respect to the aggregate dollar amount of Shares sold, or for otherwise monitoring the availability of Shares for sale under the Registration Statement. In the event that more than one Transaction Notice with respect to any Purchase Date(s) is accepted by the Company, the latest of any executed Transaction Notice shall govern any sales of Shares for the relevant Purchase Date(s), except to the extent of any action occurring pursuant to a prior accepted Transaction Notice and prior to the acceptance of such latest Transaction Notice. The Company or JPMS may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy or electronic mail), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Notwithstanding the foregoing, if the terms of any Agency Transaction contemplate that Shares shall be sold on more than one Purchase Date, then the Company and JPMS shall mutually agree to such additional terms and conditions as they deem necessary in respect of such multiple Purchase Dates, and such additional terms and conditions shall be binding to the same extent as any other terms contained in the relevant Transaction Notice.
(b) JPMS’s commission shall be 1.25% of the actual sales price of the Shares (the “Gross Sales Price”) sold pursuant to this Agreement (the Gross Sales Price less JPMS’s commission is referred to herein at the “Net Sales Price”) and such rate of compensation shall not apply when JPMS acts as principal.
(c) Payment of the Net Sales Price for Shares sold by the Company on any Purchase Date pursuant to a Transaction Notice shall be made to the Company by federal funds wire transfer to the account of the Company, the details of which are set forth on Schedule III hereto, against delivery of such Shares to JPMS. Such payment and delivery shall be made at or about 10:00 a.m., local time in New York, New York, on the third Exchange Business Day (or such other day as may, from time to time, become standard industry practice for settlement of such a securities issuance) following each Purchase Date (each, a “Closing Date”).
(d) If, as provided in the related Transaction Notice, a Floor Price has been agreed to by the parties with respect to a Purchase Date, and JPMS thereafter determines and notifies the Company that the Gross Sales Price for such Transaction would not be at least equal to such Floor Price, then the Company shall not be obligated to issue and sell through JPMS, and JPMS shall not be obligated to place, the Shares proposed to be sold pursuant to such Transaction on such Purchase Date.
(e) Under no circumstances shall the Gross Sales Price of the Shares sold pursuant to this Agreement and any Terms Agreements exceed the Maximum Amount.
(f) If either party hereto has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement, any Transaction Notice or any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. On or prior to the delivery of a prospectus that is required (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the offering or sale of the Shares, JPMS shall calculate the average daily trading volume (as defined by Rule 100 of Regulation M under the Exchange Act) of the Common Stock based on market data provided by Bloomberg L.P. or such other sources as agreed upon by JPMS and the Company.
(i) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 2(a) of this Agreement (each such sale, a “Placement”), it will notify JPMS of the proposed terms of such Placement. If JPMS, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, JPMS and the Company will enter into a Terms Agreement setting forth the terms of such Placement. (ii) The terms set forth in a Terms Agreement will not be binding on the Company or JPMS unless and until the Company and JPMS have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(h) Each sale of the Shares to JPMS in a Placement shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, JPMS. Such Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by JPMS. The commitment of JPMS to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Any such Terms Agreement shall specify the number of the Shares to be purchased by JPMS pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with JPMS in the reoffering of the Shares, the time and date (each such time and date being referred to herein as a “Time of Delivery”) and the place of delivery of and payment for such Shares.
(i) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares or any other equity security of the Company shall only be effected by or through JPMS on any single given day; provided, however, that the foregoing limitation shall not apply to (i) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons.
Appears in 1 contract
Sources: Distribution Agreement (Freeport McMoran Copper & Gold Inc)
Transaction Notices. (a) The Company may, from time to time during the Term, propose to the Agent KCCI that they enter into an Agency Transaction or Principal a Transaction to be executed on a specified Exchange Business Day. If the Agent KCCI agrees to the terms of such proposed Transaction or if the Company and the Agent KCCI mutually agree to modified terms for such proposed Transaction, then the Agent Company shall promptly send to the Company KCCI a notice, substantially in the form of Exhibit A hereto (each, each a “Transaction Notice”), confirming the agreed terms of such proposed Transaction. If The time at which the Company issues a Transaction Notice shall be the “Notice Time” for that Transaction. If KCCI wishes such proposed Transaction to become a binding agreement between it and the AgentCompany, the Company KCCI shall promptly indicate its acceptance thereof by countersigning and returning such Transaction Notice to the Agent Company or sending a written notice to the Agent Company (by any means permissible under Section 12 11 hereof) indicating its acceptance. The terms reflected in a Transaction Notice shall become binding on the Agent KCCI and the Company only if accepted by the Company KCCI no later than the times specified in Section 3(b2(b) below. Each Transaction Notice shall specify, among other things:
(i) whether the Transaction is an Agency Transaction or a Principal Transaction;
(ii) the Exchange Business Day on which the Shares subject to such Agency or Principal Transaction are intended to be sold (the “Purchase Date”);
(iiiii) the number of Shares that the Company intends agrees to sell (the “Specified Number of Shares”) on such Purchase Date, which shall be no less than 5% and no more than 25% twenty percent (20%) of the average daily trading volume in the Common Stock on the Exchange for the thirty ninety (3090) Exchange Business Days preceding the date of delivery of the Transaction Notice;
(iv) whether the Company will grant the Agent the right to elect to purchase additional Shares in accordance with subsection (c) below;
(v) in the case of a purchase of Shares by the Agent acting as principal, whether the Agent shall have the option referred to in Section 3(c) below to increase the number of Shares to be sold by the Company and purchased by the Agent acting as principal on such Purchase Date; and
(viiii) the minimum lowest price (if any) below at which no sale of Shares the Company shall be made obligated to sell Shares in such Transaction (a “Floor Price”).
Appears in 1 contract
Sources: Distribution Agreement (Allete Inc)
Transaction Notices. (a) The Company may, from time to time during the Term, propose to the Agent that they enter into an Agency Transaction or Principal Transaction to be executed on a specified Exchange Business Day. If the Agent agrees to the terms of such proposed Transaction or if the Company and the Agent mutually agree to modified terms for such proposed Transaction, then the Agent shall promptly send to the Company a notice, substantially in the form of Exhibit A hereto (each, a “Transaction Notice”), confirming the agreed terms of such proposed Transaction. If the Company wishes such proposed Transaction to become a binding agreement between it and the Agent, the Company shall promptly indicate its acceptance thereof by countersigning and returning such Transaction Notice to the Agent or sending a written notice to the Agent (by any means permissible under Section 12 hereof) indicating its acceptance. The terms reflected in a Transaction Notice shall become binding on the Agent and the Company only if accepted by the Company no later than the times specified in Section 3(b) below. Each Transaction Notice shall specify, among other things:
(i) whether the Transaction is an Agency Transaction or a Principal Transaction;
(ii) the Exchange Business Day on which the Shares subject to such Agency or Principal Transaction are intended to be sold (the “Purchase Date”);
(iii) the number of Shares that the Company intends to sell (the “Specified Number of Shares”) on such Purchase Date, which shall be no less than 5% and no more than 25% of the average daily trading volume in the Common Stock on the Exchange for the thirty (30) Exchange Business Days preceding the date of delivery of the Transaction Notice;
(iv) whether the Company will grant the Agent the right to elect to purchase additional Shares in accordance with subsection (cSection 3(c) below;
(v) in the case of a purchase of Shares by the Agent acting as principal, whether the Agent shall have the option referred to in Section 3(c) below to increase the number of Shares to be sold by the Company and purchased by the Agent acting as principal on such Purchase Date; and
(vi) the minimum lowest price (if any) below at which no sale of Shares the Company shall be made obligated to sell Shares in such Transaction (a “Floor Price”).
Appears in 1 contract
Transaction Notices. (a) The Company may, from time to time during the Term, propose to the Agent R▇▇▇▇▇▇ J▇▇▇▇ that they enter into an Agency Transaction or Principal Transaction to be executed on a one or more specified Exchange Business DayDays. If the Agent R▇▇▇▇▇▇ J▇▇▇▇ agrees to the terms of such proposed Transaction or if the Company and the Agent R▇▇▇▇▇▇ J▇▇▇▇ mutually agree to modified terms for such proposed Transaction, then the Agent R▇▇▇▇▇▇ J▇▇▇▇ shall promptly send to the Company a notice, substantially in the form of Exhibit A hereto (each, a “Transaction Notice”), confirming the agreed terms of such proposed Transaction. If the Company wishes such proposed Transaction to become a binding agreement between it and the AgentR▇▇▇▇▇▇ J▇▇▇▇, the Company shall promptly indicate its acceptance thereof by countersigning and returning such Transaction Notice to the Agent R▇▇▇▇▇▇ J▇▇▇▇ or by sending a written notice to the Agent R▇▇▇▇▇▇ J▇▇▇▇ (by any means permissible under Section 12 hereofbelow) indicating its acceptance. The terms reflected in a Transaction Notice shall become binding on the Agent R▇▇▇▇▇▇ J▇▇▇▇ and the Company only if accepted by the Company no later than the times specified in Section 3(b) below. Each Transaction Notice shall specify, among other things:
(i) whether the Transaction is an Agency Transaction or a Principal Transaction;
(ii) the Exchange Business Day Day(s) on which the Shares subject to such Agency or Principal Transaction are intended to be sold (the each such date, a “Purchase Date”);
(iii) the number of Shares that the Company intends to sell (the “Specified Number of Shares”) on such Purchase Date, which shall be no less than 5% and no more than 25% of the average daily trading volume in the Common Stock on the Exchange for the thirty (30) Exchange Business Days preceding the date of delivery of the Transaction NoticeDate(s);
(iv) in the case of a Principal Transaction, whether the Company will shall grant to R▇▇▇▇▇▇ J▇▇▇▇ the Agent option referred to in Section 3(c) below to increase the right number of Shares to elect to purchase additional Shares in accordance with subsection (c) belowbe sold by the Company and purchased by R▇▇▇▇▇▇ J▇▇▇▇ acting as principal on such Purchase Date;
(v) in the case of a purchase of Shares by the Agent acting as principalPrincipal Transaction, whether the Agent R▇▇▇▇▇▇ J▇▇▇▇ shall have the option referred to in Section 3(c) below to increase the number of Shares to be sold by the Company and purchased by the Agent R▇▇▇▇▇▇ J▇▇▇▇ acting as principal on such Purchase Date; and
(vi) the minimum lowest price (if any) below at which no sale of Shares the Company shall be made obligated to sell Shares in such Transaction (a “Floor Price”).
Appears in 1 contract
Sources: Distribution Agreement (First Financial Bancorp /Oh/)
Transaction Notices. (a) The Company may, from time to time during the Term, propose to the Agent KCCI that they enter into an Agency Transaction or Principal a Transaction to be executed on a specified Exchange Business Day. If the Agent KCCI agrees to the terms of such proposed Transaction or if the Company and the Agent KCCI mutually agree to modified terms for such proposed Transaction, then the Agent Company shall promptly send to the Company KCCI a notice, substantially in the form of Exhibit A hereto (each, each a “Transaction Notice”), confirming the agreed terms of such proposed Transaction. If The time at which the Company issues a Transaction Notice shall be the “Notice Time” for that Transaction. If KCCI wishes such proposed Transaction to become a binding agreement between it and the AgentCompany, the Company KCCI shall promptly indicate its acceptance thereof by countersigning and returning such Transaction Notice to the Agent Company or sending a written notice to the Agent Company (by any means permissible under Section 12 11 hereof) indicating its acceptance. The terms reflected in a Transaction Notice shall become binding on the Agent KCCI and the Company only if accepted by the Company KCCI no later than the times specified in Section 3(b2(b) below. Each Transaction Notice shall specify, among other things:
(i) whether the Transaction is an Agency Transaction or a Principal Transaction;
(ii) the Exchange Business Day on which the Remaining Shares subject to such Agency or Principal Transaction are intended to be sold (the “Purchase Date”);
(iiiii) the number of Remaining Shares that the Company intends agrees to sell (the “Specified Number of Shares”) on such Purchase Date, which shall be no less than 5% and no more than 25% not exceed the greater of (i) twenty percent (20%) of the trading volume in the Common Stock on the Exchange on the Purchase Date, or (ii) twenty percent (20%) of the average daily trading volume in the Common Stock on the Exchange for the thirty ninety (3090) Exchange Business Days preceding the date of delivery of the Transaction Notice;
(iv) whether the Company will grant the Agent the right to elect to purchase additional Shares in accordance with subsection (c) below;
(v) in the case of a purchase of Shares by the Agent acting as principal, whether the Agent shall have the option referred to in Section 3(c) below to increase the number of Shares to be sold by the Company and purchased by the Agent acting as principal on such Purchase Date; and
(viiii) the minimum lowest price (if any) below at which no sale of Shares the Company shall be made obligated to sell Remaining Shares in such Transaction (a “Floor Price”). A Transaction Notice shall not set forth a Specified Number of Shares that, when added to the aggregate number of Shares previously purchased and to be purchased pursuant to pending Transaction Notices (if any) hereunder and under the Prior Distribution Agreement, results in a total that exceeds the Maximum Number of Shares. The Company shall have responsibility for maintaining records with respect to the aggregate number of Shares sold, or for otherwise monitoring the availability of Remaining Shares for sale under the Registration Statement. A Transaction Notice conforming to the foregoing requirements, once accepted by KCCI, shall be irrevocable, and the Company shall be obligated to sell the Specified Number of Shares and KCCI shall be obligated, subject to the terms of, and satisfaction of, the conditions set forth in this Agreement and such Transaction Notice, including, but not limited to, Section 1(e) above and Section 2(e) below, to use its commercially reasonable efforts to obtain performance from each Purchaser providing offers for the Remaining Shares. Notwithstanding the foregoing, if the terms of any Transaction contemplate that Remaining Shares shall be sold on more than one Purchase Date, then the Company and KCCI shall mutually agree to such additional terms and conditions as they deem necessary in respect of such multiple Purchase Dates, and such additional terms and conditions shall be set forth in the relevant Transaction Notice and be binding to the same extent as any other terms contained therein.
(b) The Purchase Date in respect of the Remaining Shares deliverable pursuant to any Transaction Notice shall occur on the Exchange Business Day next following the date on which such Transaction Notice is accepted if such acceptance occurs by 4:30 P.M. (New York time) on such acceptance date; provided that if a Transaction Notice is accepted prior to 8:30 A.M. (New York time) on an Exchange Business Day (or by such later time as the Company may agree in its sole discretion), the Purchase Date in respect of such Remaining Shares shall be on such date of acceptance. For Transactions, KCCI's commission shall be $0.03 per Share sold and the “Net Sales Price” shall be the Gross Sale Price less KCCI's commission.
(c) Payment of the Net Sales Price for Remaining Shares sold by the Company on any Purchase Date pursuant to a Transaction Notice shall be made to the Company by federal funds wire transfer to an account designated by the Company in writing, against delivery of such Shares to the accounts specified in writing by KCCI. Such payment and delivery shall be made at or about 10:00 A.M., local time in New York, New York, on the third Exchange Business Day (or such other day as may, from time to time, become standard industry practice for settlement of such a securities issuance) following each Purchase Date (the “Closing Date”). If the Company fails for any reason to make timely delivery of such Shares, the Company shall indemnify KCCI and its successors and assigns and hold them harmless from and against any loss, damage, expense, liability or claim that KCCI may incur as a result of such failure.
(d) If, as provided in the related Transaction Notice, a Floor Price has been agreed to by the parties with respect to a Transaction, and the Gross Sales Price for such Transaction would not be at least equal to such Floor Price, then the Company shall not be obligated to issue and sell through KCCI, and KCCI shall not be obligated to place, the Specified Number of Shares for such Transaction.
(e) If either party is aware that the Company is selling shares of Common Stock (other than the Remaining Shares offered pursuant to this Agreement) during the Term and the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the sale of such other shares of Common Stock, it shall promptly notify the other party and sales of the Remaining Shares under this Agreement and any Transaction Notice shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
Appears in 1 contract
Sources: Distribution Agreement (Allete Inc)
Transaction Notices. (a) The Company may, from time to time during the Term, propose to the Agent ▇▇▇▇▇▇▇ that they enter into an Agency Transaction or Principal a Transaction to be executed on a specified Exchange Business Day. If the Agent ▇▇▇▇▇▇▇ agrees to the terms of such proposed Transaction or if the Company and the Agent ▇▇▇▇▇▇▇ mutually agree to modified terms for such proposed Transaction, then the Agent Company shall promptly send to the Company ▇▇▇▇▇▇▇ a notice, substantially in the form of Exhibit A hereto (each, each a “Transaction Notice”), confirming the agreed terms of such proposed Transaction. If The time at which the Company issues a Transaction Notice shall be the “Notice Time” for that Transaction. If ▇▇▇▇▇▇▇ wishes such proposed Transaction to become a binding agreement between it and the AgentCompany, the Company ▇▇▇▇▇▇▇ shall promptly indicate its acceptance thereof by countersigning and returning such Transaction Notice to the Agent Company or sending a written notice to the Agent Company (by any means permissible under Section 12 11 hereof) indicating its acceptance. The terms reflected in a Transaction Notice shall become binding on the Agent ▇▇▇▇▇▇▇ and the Company only if accepted by the Company ▇▇▇▇▇▇▇ no later than the times specified in Section 3(b2(b) below. Each Transaction Notice shall specify, among other things:
(i) whether the Transaction is an Agency Transaction or a Principal Transaction;
(ii) the Exchange Business Day on which the Remaining Shares subject to such Agency or Principal Transaction are intended to be sold (the “Purchase Date”);
(iiiii) the number of Remaining Shares that the Company intends agrees to sell (the “Specified Number of Shares”) on such Purchase Date, which shall be no less than 5% and no more than 25% not exceed the greater of (i) twenty percent (20%) of the trading volume in the Common Stock on the Exchange on the Purchase Date, or (ii) twenty percent (20%) of the average daily trading volume in the Common Stock on the Exchange for the thirty ninety (3090) Exchange Business Days preceding the date of delivery of the Transaction Notice;
(iv) whether the Company will grant the Agent the right to elect to purchase additional Shares in accordance with subsection (c) below;
(v) in the case of a purchase of Shares by the Agent acting as principal, whether the Agent shall have the option referred to in Section 3(c) below to increase the number of Shares to be sold by the Company and purchased by the Agent acting as principal on such Purchase Date; and
(viiii) the minimum lowest price (if any) below at which no sale of Shares the Company shall be made obligated to sell Remaining Shares in such Transaction (a “Floor Price”). A Transaction Notice shall not set forth a Specified Number of Shares that, when added to the aggregate number of Shares previously purchased and to be purchased pursuant to pending Transaction Notices (if any) hereunder and under the Prior Distribution Agreement, results in a total that exceeds the Maximum Number of Shares. The Company shall have responsibility for maintaining records with respect to the aggregate number of Shares sold, or for otherwise monitoring the availability of Remaining Shares for sale under the Registration Statement. A Transaction Notice conforming to the foregoing requirements, once accepted by ▇▇▇▇▇▇▇, shall be irrevocable, and the Company shall be obligated to sell the Specified Number of Shares and ▇▇▇▇▇▇▇ shall be obligated, subject to the terms of, and satisfaction of, the conditions set forth in this Agreement and such Transaction Notice, including, but not limited to, Section 1(e) above and Section 2(e) below, to use its commercially reasonable efforts to obtain performance from each Purchaser providing offers for the Remaining Shares. Notwithstanding the foregoing, if the terms of any Transaction contemplate that Remaining Shares shall be sold on more than one Purchase Date, then the Company and ▇▇▇▇▇▇▇ shall mutually agree to such additional terms and conditions as they deem necessary in respect of such multiple Purchase Dates, and such additional terms and conditions shall be set forth in the relevant Transaction Notice and be binding to the same extent as any other terms contained therein.
(b) The Purchase Date in respect of the Remaining Shares deliverable pursuant to any Transaction Notice shall occur on the Exchange Business Day next following the date on which such Transaction Notice is accepted if such acceptance occurs by 4:30 P.M. (New York time) on such acceptance date; provided that if a Transaction Notice is accepted prior to 8:30 A.M. (New York time) on an Exchange Business Day (or by such later time as the Company may agree in its sole discretion), the Purchase Date in respect of such Remaining Shares shall be on such date of acceptance. The compensation to ▇▇▇▇▇▇▇ for each Transaction shall be up to one percent (1.0%) of the Gross Sales Price, as mutually agreed to in writing by the Company and ▇▇▇▇▇▇▇. The “Net Sales Price” shall be the Gross Sale Price less ▇▇▇▇▇▇▇’▇ commission.
(c) Payment of the Net Sales Price for Remaining Shares sold by the Company on any Purchase Date pursuant to a Transaction Notice shall be made to the Company by federal funds wire transfer to an account designated by the Company in writing, against delivery of such Shares to the accounts specified in writing by ▇▇▇▇▇▇▇. Such payment and delivery shall be made at or about 10:00 A.M., local time in New York, New York, on the third Exchange Business Day (or such other day as may, from time to time, become standard industry practice for settlement of such a securities issuance) following each Purchase Date (the “Closing Date”). If the Company fails for any reason to make timely delivery of such Shares, the Company shall indemnify ▇▇▇▇▇▇▇ and its successors and assigns and hold them harmless from and against any loss, damage, expense, liability or claim that ▇▇▇▇▇▇▇ may incur as a result of such failure.
(d) If, as provided in the related Transaction Notice, a Floor Price has been agreed to by the parties with respect to a Transaction, and the Gross Sales Price for such Transaction would not be at least equal to such Floor Price, then the Company shall not be obligated to issue and sell through ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ shall not be obligated to place, the Specified Number of Shares for such Transaction.
(e) If either party is aware that the Company is selling shares of Common Stock (other than the Remaining Shares offered pursuant to this Agreement) during the Term and the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the sale of such other shares of Common Stock, it shall promptly notify the other party and sales of the Remaining Shares under this Agreement and any Transaction Notice shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
Appears in 1 contract
Sources: Distribution Agreement (Allete Inc)
Transaction Notices. (a) The Company may, from time to time during the Term, propose to the Agent MS that they enter into an Agency Transaction or Principal Transaction to be executed on a specified Exchange Business Day. If the Agent MS agrees to the terms of such proposed Transaction or if the Company and the Agent MS mutually agree to modified terms for such proposed Transaction, then the Agent MS shall promptly send to the Company by the means set forth under Section 11 hereof a notice, substantially in the form of Exhibit A hereto (each, a “Transaction Notice”), confirming the agreed terms of such proposed Transaction. If the Company wishes such proposed Transaction to become a binding agreement between it and the AgentMS, the Company shall promptly indicate its acceptance thereof by countersigning and returning such Transaction Notice to the Agent MS or sending a written notice acceptance of the Transaction Notice to MS in each case by the Agent (by any means permissible set forth under Section 12 11 hereof) indicating its acceptance. The terms reflected in a Transaction Notice shall become binding on the Agent MS and the Company only if accepted by the Company no later than the times specified in Section 3(b2(b) below. Each Transaction Notice shall specify, among other things:
(i) whether the Transaction is an Agency Transaction or a Principal Transaction;
(ii) the Exchange Business Day Day(s) on which the Shares subject to such Agency or Principal Transaction are intended to be sold (the each a “Purchase Date”);
(iiiii) the number of Shares that the Company intends to sell (the “Specified Number of Shares”) on each such Purchase Date, which shall be no less than 5% and no more than 25% of the average daily trading volume in the Common Stock on the Exchange for the thirty (30) 30 Exchange Business Days preceding the date of delivery of the Transaction Notice;
(iv) whether the Company will grant the Agent the right to elect to purchase additional Shares in accordance with subsection (c) below;
(v) in the case of a purchase of Shares by the Agent acting , or as principal, whether the Agent shall have the option referred to in Section 3(c) below to increase the number of Shares to be sold by otherwise agreed between the Company and purchased by MS and documented in the Agent acting as principal on such Purchase Daterelevant Transaction Notice; and
(viiii) the minimum lowest price (if any) below at which no sale of the Company is willing to sell Shares shall be made on each such Purchase Date (a “Floor Price”). A Transaction Notice shall not set forth a Specified Number of Shares that, when added to the aggregate number of Shares previously purchased and to be purchased pursuant to pending Transaction Notices (if any) hereunder, any Terms Agreement, the Alternative Distribution Agreement and any Alternative Terms Agreement, results in a total that exceeds Shares equal to the Maximum Number. The Company shall have responsibility for maintaining records with respect to the aggregate dollar amount of Shares sold, or for otherwise monitoring the availability of Shares for sale under the Registration Statement. In the event more than one Transaction Notice with respect to any Purchase Date is accepted by the Company, the latest of any executed Transaction Notice shall govern any sales of Shares for the relevant Purchase Date(s) except to the extent of any action occurring prior to the acceptance of any Transaction Notice. The Company or MS may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Notwithstanding the foregoing, if the terms of any Agency Transaction contemplate that Shares shall be sold on more than one Purchase Date, then the Company and MS shall mutually agree to such additional terms and conditions as they deem necessary in respect of such multiple Purchase Dates, and such additional terms and conditions shall be set forth in the relevant Transaction Notice and be binding to the same extent as any other terms contained therein.
(b) MS’s commission shall be 2% of the actual sales price of the Shares (the “Gross Sale Price”) (the Gross Sales Price less MS’s commission is referred to herein at the “Net Sales Price”) sold pursuant to this Agreement, and such rate of compensation shall not apply when MS acts as principal.
(c) Payment of the Net Sales Price for Shares sold by the Company on any Purchase Date pursuant to a Transaction Notice shall be made to the Company by federal funds wire transfer to: Bank: [Redacted] ABA #: [Redacted] SWIFT: [Redacted] Account # [Redacted] Account Name: United Airlines Special Account Beneficiary: United Airlines against delivery of such Shares to MS. Such payment and delivery shall be made at or about 10:00 a.m., local time in New York, New York, on the third Exchange Business Day (or such other day as may, from time to time, become standard industry practice for settlement of such a securities issuance) following each Purchase Date (a “Closing Date”).
(d) If, as provided in the related Transaction Notice, a Floor Price has been agreed to by the parties with respect to a Purchase Date, and MS thereafter determines and notifies the Company that the Gross Sales Price for such Transaction would not be at least equal to such Floor Price, then the Company shall not be obligated to issue and sell through MS, and MS shall not be obligated to place, the Specified Number of Shares for the Transaction on such Purchase Date.
(e) Under no circumstances shall the Gross Sales Price of the Shares sold pursuant to the Distribution Agreements, any Terms Agreement and any Alternative Terms Agreement exceed the Maximum Amount.
(f) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement, any Transaction Notice or any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. On or prior to the delivery of a prospectus that is required (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the offering or sale of the Shares, MS shall calculate the average daily trading volume (as defined by Rule 100 of Regulation M under the Exchange Act) of the Common Stock based on market data provided by Bloomberg L.P. or such other sources as agreed upon by MS and the Company.
(i) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 2(a) of this Agreement (each a “Placement”), it will notify MS of the proposed terms of such Placement. If MS, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, MS and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Company or MS unless and until the Company and MS have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(h) Each sale of the Shares to MS in a Placement shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, MS. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by MS. The commitment of MS to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by MS pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with MS in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares.
(i) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares or any other equity security of the Company shall only be effected by or through only one of MS or the Alternative Agent on any single given day, but in no event by both, and the Company shall in no event request that MS and the Alternative Agent sell Shares on the same day; provided, however, that the foregoing limitation shall not apply to (i) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or
(ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons.
Appears in 1 contract
Transaction Notices. (a) The Company may, from time to time during the Term, propose to the Agent JPMS that they enter into an Agency Transaction or Principal Transaction to be executed on a specified Exchange Business Day. If the Agent JPMS agrees to the terms of such proposed Transaction or if the Company and the Agent JPMS mutually agree to modified terms for such proposed Transaction, then the Agent JPMS shall promptly send to the Company a notice, substantially in the form of Exhibit A hereto (each, a “Transaction Notice”), confirming the agreed terms of such proposed Transaction. If the Company wishes such proposed Transaction to become a binding agreement between it and the AgentJPMS, the Company shall promptly indicate its acceptance thereof by countersigning and returning such Transaction Notice to the Agent JPMS or sending a written notice to the Agent JPMS (by any means permissible under Section 12 hereof) indicating its acceptance. The time at which the Company indicates its acceptance of any such Transaction shall be the “Acceptance Time” for that Transaction. The terms reflected in a Transaction Notice shall become binding on the Agent JPMS and the Company only if accepted by the Company no later than the times specified in Section 3(b) below. Each Transaction Notice shall specify, among other things:
(i) whether the Transaction is an Agency Transaction or a Principal Transaction;
(ii) the Exchange Business Day Day, on which the Shares subject to such Agency or Principal Transaction are intended to be sold (the “Purchase Date”);
(iii) the number of Shares that the Company intends agrees to sell (the “Specified Number of Shares”) on such Purchase Date, which shall be no less than 5% and no more than 25% of the average daily trading volume in the Common Stock on the Exchange for the thirty (30) Exchange Business Days preceding the date of delivery of the Transaction Notice;
(iv) whether the Company will grant the Agent JPMS the right to elect to purchase additional Shares in accordance with subsection (cSection 3(c) below;
(v) in the case of a purchase of Shares by the Agent acting as principalPrincipal Transaction, whether the Agent JPMS shall have the option referred to in Section 3(c) below to increase the number of Shares to be sold by the Company and purchased by the Agent acting as principal JPMS on such Purchase Date; and
(vi) the minimum lowest price (if any) below at which no sale of Shares the Company shall be made obligated to sell Shares in such Transaction (a “Floor Price”).. A Transaction Notice shall not set forth a Specified Number of Shares that, when added to the aggregate number of Shares previously purchased and to be purchased pursuant to pending Transaction Notices (if any) hereunder, results in a total that exceeds the Maximum Number of
Appears in 1 contract
Transaction Notices. (a) The Company Seller Agent may, from time to time during the Facility Term, propose to the Agent that they enter into an Agency Transaction or Principal Transaction to be executed on deliver a specified Exchange Business Day. If the Agent agrees to the terms of such proposed Transaction or if the Company and the Agent mutually agree to modified terms for such proposed Transaction, then the Agent shall promptly send to the Company a written notice, substantially in the form of attached hereto as Exhibit A hereto (each, a “Transaction Notice”) to Buyer Agent and each Buyer requesting on behalf of the Sellers that Buyers enter into Transactions with respect to each of the Seller Notes on a Monthly Date (or, if Sellers elect to terminate outstanding Transactions pursuant to Paragraph 3(c)(ii) of the applicable Master Repurchase Agreement, on the effective date of such termination) on a pro rata basis in accordance with each Buyer’s Undivided Funding Percentage. Such notice (i) shall be delivered to Buyer Agent and each Buyer not less than three (3) Business Days prior to the date of the proposed Transaction, (ii) shall include fully-completed forms of Confirmations for such Transactions (excluding the terms thereof pertaining to Pricing Rate, Price Differential and Repurchase Price), confirming and (iii) to the agreed terms extent the proposed Purchase Date is a Monthly Date, shall be accompanied by copies of the Purchase Report and the Information Package required to be delivered pursuant to the Securitization Facility Documents in respect of the most recently completed Settlement Period prior to such proposed Purchase Date. For the avoidance of doubt, (A) no Transaction may be requested hereunder with respect to a Seller Note unless a corresponding Transaction is requested hereunder with respect to each other Seller Note, each of such proposed Transaction. If Transactions having the Company wishes such same proposed Purchase Date and same proposed Repurchase Date and (B) no outstanding Transaction with respect to become a binding agreement between it and Seller Note may be terminated by a Seller pursuant to Paragraph 3(c)(ii) of the Agent, the Company shall promptly indicate its acceptance thereof by countersigning and returning such applicable Master Repurchase Agreement unless each other corresponding Transaction Notice with respect to the Agent or sending a written notice to the Agent (by any means permissible each other Seller Note is likewise terminated under Section 12 hereof) indicating its acceptance. The terms reflected in a Transaction Notice shall become binding each other Master Repurchase Agreement on the Agent and the Company only if accepted by the Company no later than the times specified in Section 3(b) below. Each Transaction Notice shall specify, among other things:
(i) whether the Transaction is an Agency Transaction or a Principal Transaction;
(ii) the Exchange Business Day on which the Shares subject to such Agency or Principal Transaction are intended to be sold (the “Purchase Date”);
(iii) the number of Shares that the Company intends to sell (the “Specified Number of Shares”) on such Purchase Date, which shall be no less than 5% and no more than 25% of the average daily trading volume in the Common Stock on the Exchange for the thirty (30) Exchange Business Days preceding the same effective date of delivery of the Transaction Notice;
(iv) whether the Company will grant the Agent the right to elect to purchase additional Shares in accordance with subsection (c) below;
(v) in the case of a purchase of Shares by the Agent acting as principal, whether the Agent shall have the option referred to in Section 3(c) below to increase the number of Shares to be sold by the Company and purchased by the Agent acting as principal on such Purchase Date; and
(vi) the minimum price (if any) below which no sale of Shares shall be made (a “Floor Price”)termination.
Appears in 1 contract
Sources: Master Framework Agreement (CHS Inc)
Transaction Notices. (a) The Company may, from time to time during the Term, propose to the Agent JPMS that they enter into an Agency Transaction or Principal Transaction to be executed on a specified Exchange Business Day. If the Agent JPMS agrees to the terms of such proposed Transaction or if the Company and the Agent JPMS mutually agree to modified terms for such proposed Transaction, then the Agent JPMS shall promptly send to the Company a notice, substantially in the form of Exhibit A hereto (each, a “Transaction Notice”), confirming the agreed terms of such proposed Transaction. If the Company wishes such proposed Transaction to become a binding agreement between it and the AgentJPMS, the Company shall promptly indicate its acceptance thereof by countersigning and returning such Transaction Notice to the Agent JPMS or sending a written notice to the Agent JPMS (by any means permissible under Section 12 hereof) indicating its acceptance. The terms reflected in a Transaction Notice shall become binding on the Agent JPMS and the Company only if accepted by the Company no later than the times specified in Section 3(b) below. Each Transaction Notice shall specify, among other things:
(i) whether the Transaction is an Agency Transaction or a Principal Transaction;
(ii) the Exchange Business Day on which the Shares subject to such Agency or Principal Transaction are intended to be sold (the “Purchase Date”);
(iii) the number of Shares that the Company intends to sell (the “Specified Number of Shares”) on such Purchase Date, which shall be no less than 5% and no more than 25% of the average daily trading volume in the Common Stock on the Exchange for the thirty (30) Exchange Business Days preceding the date of delivery of the Transaction Notice;; and
(iv) whether the lowest price (if any) at which the Company will grant shall be obligated to sell Shares in such Transaction (a “Floor Price”). A Transaction Notice shall not set forth a Specified Number of Shares that, when added to the Agent aggregate number of Shares previously purchased and to be purchased pursuant to pending Transaction Notices (if any) hereunder, results in a total that exceeds the right Maximum Number of Shares. The Company shall have responsibility for maintaining records with respect to elect the aggregate dollar amount of Shares sold, or for otherwise monitoring the availability of Shares for sale under the Registration Statement. There shall be no more than one Transaction Notice and one related Transaction with respect to any Purchase Date. A Transaction Notice conforming to the foregoing requirements, once accepted by the Company, shall be irrevocable, and the Company shall be obligated to sell the Specified Number of Shares and JPMS shall be obligated, subject to the terms of, and satisfaction of, the conditions set forth in this Agreement and such Transaction Notice, including, but not limited to, Section 1(f) above and Section 3(d) below, to (x) in Agency Transactions, use its commercially reasonable efforts to solicit offers for the Shares, and (y) in Principal Transactions, purchase additional such Shares in accordance with subsection (c) below;the terms and conditions of this Agreement and such Transaction Notice. Notwithstanding the foregoing, if the terms of any Agency Transaction or Principal Transaction contemplate that Shares shall be sold on more than one Purchase Date, then the Company and JPMS shall mutually agree to such additional terms and conditions as they deem necessary in respect of such multiple Purchase Dates, and such additional terms and conditions shall be set forth in the relevant Transaction Notice and be binding to the same extent as any other terms contained therein.
(vb) The Purchase Date in respect of the Shares deliverable pursuant to any Transaction Notice shall be the Exchange Business Day next following the date on which such Transaction Notice is accepted if such acceptance occurs by 4:30 p.m. (New York time) on such acceptance date; provided that if a Transaction Notice is accepted prior to 8:30 a.m. (New York time) on an Exchange Business Day (or by such later time as JPMS may agree in its sole discretion), the Purchase Date in respect of such Shares shall be such date of acceptance. For Principal Transactions, the price per Share to be paid by JPMS to the Company for the purchase of any such Shares pursuant to this Agreement shall be the volume weighted average price of the Shares as reported by Bloomberg LP for the relevant Purchase Date (“VWAP”) or such other price per Share based on VWAP as may be agreed upon between the Company and JPMS in the case Transaction Notice (the “Principal Transaction Gross Sale Price”), less JPMS’s commission of a purchase 1.5% of the Principal Transaction Gross Sale Price for all Shares by sold and purchased as principal on such Purchase Date (the Agent acting as principal, whether the Agent shall have the option Principal Transaction Gross Sale Price less JPMS’s commission is referred to in Section 3(c) below to increase herein as the number “Net Sales Price”). For Agency Transactions, JPMS’s commission shall be 1.5% of the actual sales price of the Shares (the “Agency Transaction Gross Sales Price”, and together with the Principal Transaction Gross Sales Price, the “Gross Sale Price”). The Specified Number of Shares to be sold by the Company and purchased by on any Purchase Date is hereinafter referred to as the Agent acting as principal on “Purchased Number of Shares” in respect of such Purchase Date; and.
(vic) If the minimum price (if any) below which no sale Purchased Number of Shares for any Purchase Date exceeds 50% of the total number of shares of Common Stock traded on the Exchange during regular trading hours on the Purchase Date, JPMS may, at its option, elect to reduce the Purchased Number of Shares to 50% of such total number of shares traded.
(d) Payment of the Net Sales Price for Shares sold by the Company on any Purchase Date pursuant to a Transaction Notice shall be made to the Company by federal funds wire transfer to such account as may be specified in writing by the Company against delivery of such Shares to: (x) the accounts specified in writing by JPMS for sales made by JPMS acting as agent, or (y) JPMS through the facilities of the Depository Trust Company for purchase from the Company by JPMS acting as principal. Such payment and delivery shall be made at or about 10:00 a.m., local time in New York, New York, on the third Exchange Business Day (or such other day as may, from time to time, become standard industry practice for settlement of such a securities issuance) following each Purchase Date (the “Closing Date”). If the Company fails for any reason to make timely delivery of such Shares, the Company shall indemnify JPMS and its successors and assigns and hold them harmless from and against any loss, damage, expense, liability or claim that JPMS may incur as a result of such failure.
(e) If, as provided in the related Transaction Notice, a Floor Price has been agreed to by the parties with respect to a Transaction, and JPMS thereafter determines and notifies the Company that the Gross Sales Price for such Transaction would not be at least equal to such Floor Price”), then the Company shall not be obligated to issue and sell to or through JPMS, and JPMS shall not be obligated to purchase or place, the Specified Number of Shares for such Transaction, except that JPMS may, at its option, elect to have the Gross Sales Price for such Transaction equal such Floor Price in which case the parties shall be obligated to consummate such Transaction on that basis.
(f) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Transaction Notice shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. JPMS shall calculate on a weekly basis the average daily trading volume (as defined by Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
Appears in 1 contract
Transaction Notices. (a) The Company may, from time to time during the Term, propose to the Agent JPMS that they enter into an Agency Transaction or Principal Transaction to be executed on a specified Exchange Business Day. If the Agent JPMS agrees to the terms of such proposed Transaction or if the Company and the Agent JPMS mutually agree to modified terms for such proposed Transaction, then the Agent JPMS shall promptly send to the Company by the means set forth under Section 11 hereof a notice, substantially in the form of Exhibit A hereto (each, a “Transaction Notice”), confirming the agreed terms of such proposed Transaction. If the Company wishes such proposed Transaction to become a binding agreement between it and the AgentJPMS, the Company shall promptly indicate its acceptance thereof by countersigning and returning such Transaction Notice to the Agent JPMS or sending a written notice acceptance of the Transaction Notice to JPMS in each case by the Agent (by any means permissible set forth under Section 12 11 hereof) indicating its acceptance. The terms reflected in a Transaction Notice shall become binding on the Agent JPMS and the Company only if accepted by the Company no later than the times specified in Section 3(b2(b) below. Each Transaction Notice shall specify, among other things:
(i) whether the Transaction is an Agency Transaction or a Principal Transaction;
(ii) the Exchange Business Day Day(s) on which the Shares subject to such Agency or Principal Transaction are intended to be sold (the each a “Purchase Date”);
(iiiii) the number of Shares that the Company intends to sell (the “Specified Number of Shares”) on each such Purchase Date, which shall be no less than 5% and no more than 25% of the average daily trading volume in the Common Stock on the Exchange for the thirty (30) 30 Exchange Business Days preceding the date of delivery of the Transaction Notice;
(iv) whether the Company will grant the Agent the right to elect to purchase additional Shares in accordance with subsection (c) below;
(v) in the case of a purchase of Shares by the Agent acting , or as principal, whether the Agent shall have the option referred to in Section 3(c) below to increase the number of Shares to be sold by otherwise agreed between the Company and purchased by JPMS and documented in the Agent acting as principal on such Purchase Daterelevant Transaction Notice; and
(viiii) the minimum lowest price (if any) below at which no sale of the Company is willing to sell Shares shall be made on each such Purchase Date (a “Floor Price”). A Transaction Notice shall not set forth a Specified Number of Shares that, when added to the aggregate number of Shares previously purchased and to be purchased pursuant to pending Transaction Notices (if any) hereunder, any Terms Agreement, the Alternative Distribution Agreement and any Alternative Terms Agreement, results in a total that exceeds Shares equal to the Maximum Number. The Company shall have responsibility for maintaining records with respect to the aggregate dollar amount of Shares sold, or for otherwise monitoring the availability of Shares for sale under the Registration Statement. In the event more than one Transaction Notice with respect to any Purchase Date is accepted by the Company, the latest of any executed Transaction Notice shall govern any sales of Shares for the relevant Purchase Date(s) except to the extent of any action occurring prior to the acceptance of any Transaction Notice. The Company or JPMS may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), suspend the offering of the Shares; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. Notwithstanding the foregoing, if the terms of any Agency Transaction contemplate that Shares shall be sold on more than one Purchase Date, then the Company and JPMS shall mutually agree to such additional terms and conditions as they deem necessary in respect of such multiple Purchase Dates, and such additional terms and conditions shall be set forth in the relevant Transaction Notice and be binding to the same extent as any other terms contained therein.
(b) JPMS’s commission shall be 2% of the actual sales price of the Shares (the “Gross Sale Price”) (the Gross Sales Price less JPMS’s commission is referred to herein at the “Net Sales Price”) sold pursuant to this Agreement, and such rate of compensation shall not apply when JPMS acts as principal.
(c) Payment of the Net Sales Price for Shares sold by the Company on any Purchase Date pursuant to a Transaction Notice shall be made to the Company by federal funds wire transfer to: Bank: [Redacted] ABA #: [Redacted] SWIFT: [Redacted] Account # [Redacted] Account Name: United Airlines Special Account Beneficiary: United Airlines against delivery of such Shares to JPMS. Such payment and delivery shall be made at or about 10:00 a.m., local time in New York, New York, on the third Exchange Business Day (or such other day as may, from time to time, become standard industry practice for settlement of such a securities issuance) following each Purchase Date (a “Closing Date”).
(d) If, as provided in the related Transaction Notice, a Floor Price has been agreed to by the parties with respect to a Purchase Date, and JPMS thereafter determines and notifies the Company that the Gross Sales Price for such Transaction would not be at least equal to such Floor Price, then the Company shall not be obligated to issue and sell through JPMS, and JPMS shall not be obligated to place, the Specified Number of Shares for the Transaction on such Purchase Date.
(e) Under no circumstances shall the Gross Sales Price of the Shares sold pursuant to the Distribution Agreements, any Terms Agreement and any Alternative Terms Agreement exceed the Maximum Amount.
(f) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement, any Transaction Notice or any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. On or prior to the delivery of a prospectus that is required (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the offering or sale of the Shares, JPMS shall calculate the average daily trading volume (as defined by Rule 100 of Regulation M under the Exchange Act) of the Common Stock based on market data provided by Bloomberg L.P. or such other sources as agreed upon by JPMS and the Company.
(i) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other than as set forth in Section 2(a) of this Agreement (each a “Placement”), it will notify JPMS of the proposed terms of such Placement. If JPMS, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company, wishes to accept amended terms, JPMS and the Company will enter into a Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the Company or JPMS unless and until the Company and JPMS have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(h) Each sale of the Shares to JPMS in a Placement shall be made in accordance with the terms of this Agreement and a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, JPMS. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by JPMS. The commitment of JPMS to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by JPMS pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with JPMS in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares.
(i) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares or any other equity security of the Company shall only be effected by or through only one of JPMS or the Alternative Agent on any single given day, but in no event by both, and the Company shall in no event request that JPMS and the Alternative Agent sell Shares on the same day; provided, however, that the foregoing limitation shall not apply to (i) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons.
Appears in 1 contract
Transaction Notices. (a) The Company may, from time to time during the Term, propose to the Agent KCCI that they enter into an Agency Transaction or Principal a Transaction to be executed on a specified Exchange Business Day. If the Agent KCCI agrees to the terms of such proposed Transaction or if the Company and the Agent KCCI mutually agree to modified terms for such proposed Transaction, then the Agent Company shall promptly send to the Company KCCI a notice, substantially in the form of Exhibit A hereto (each, each a “Transaction Notice”), confirming the agreed terms of such proposed Transaction. If The time at which the Company issues a Transaction Notice shall be the “Notice Time” for that Transaction. If KCCI wishes such proposed Transaction to become a binding agreement between it and the AgentCompany, the Company KCCI shall promptly indicate its acceptance thereof by countersigning and returning such Transaction Notice to the Agent Company or sending a written notice to the Agent Company (by any means permissible under Section 12 11 hereof) indicating its acceptance. The terms reflected in a Transaction Notice shall become binding on the Agent KCCI and the Company only if accepted by the Company KCCI no later than the times specified in Section 3(b2(b) below. Each Transaction Notice shall specify, among other things:
(i) whether the Transaction is an Agency Transaction or a Principal Transaction;
(ii) the Exchange Business Day on which the Remaining Shares subject to such Agency or Principal Transaction are intended to be sold (the “Purchase Date”);
(iiiii) the number of Remaining Shares that the Company intends agrees to sell (the “Specified Number of Shares”) on such Purchase Date, which shall be no less than 5% and no more than 25% not exceed the greater of (i) twenty percent (20%) of the trading volume in the Common Stock on the Exchange on the Purchase Date, or (ii) twenty percent (20%) of the average daily trading volume in the Common Stock on the Exchange for the thirty ninety (3090) Exchange Business Days preceding the date of delivery of the Transaction Notice;
(iv) whether the Company will grant the Agent the right to elect to purchase additional Shares in accordance with subsection (c) below;
(v) in the case of a purchase of Shares by the Agent acting as principal, whether the Agent shall have the option referred to in Section 3(c) below to increase the number of Shares to be sold by the Company and purchased by the Agent acting as principal on such Purchase Date; and
(viiii) the minimum lowest price (if any) below at which no sale of Shares the Company shall be made obligated to sell Remaining Shares in such Transaction (a “Floor Price”).
Appears in 1 contract
Sources: Distribution Agreement (Allete Inc)
Transaction Notices. (a) The Company may, from time to time during the Term, propose to the Agent [Distribution Agent] that they enter into an Agency Transaction or Principal Transaction to be executed on a specified Exchange Business Day. If the Agent [Distribution Agent] agrees to the terms of such proposed Transaction or if the Company and the Agent [Distribution Agent] mutually agree to modified terms for such proposed Transaction, then the Agent [Distribution Agent] shall promptly send to the Company a notice, substantially in the form of Exhibit A hereto (each, a “Transaction Notice”), confirming the agreed terms of such proposed Transaction. If the Company wishes such proposed Transaction to become a binding agreement between it and the [Distribution Agent], the Company shall promptly indicate its acceptance thereof by countersigning and returning such Transaction Notice to the Agent [Distribution Agent] or sending a written notice to the Agent [Distribution Agent] (by any means permissible under Section 12 hereof) indicating its acceptance. The terms reflected in a Transaction Notice shall become binding on the Agent [Distribution Agent] and the Company only if accepted by the Company no later than the times specified in Section 3(b) below. Each Transaction Notice shall specify, among other things:
(i) whether the Transaction is an Agency Transaction or a Principal Transaction;
(ii) the Exchange Business Day on which the Shares subject to such Agency or Principal Transaction are intended to be sold (the “Purchase Date”);
(iii) the number of Shares that the Company intends to sell (the “Specified Number of Shares”) on such Purchase Date, which shall be no less than 5% [5]% and no more than 25% [25]% of the average daily trading volume in the Common Stock on the Exchange for the thirty (30) 30 Exchange Business Days preceding the date of delivery of the Transaction Notice;
(iv) whether the Company will grant the Agent the right to elect to purchase additional Shares in accordance with subsection (c) below;
(v) in the case of a purchase of Shares by the Agent acting as principalPrincipal Transaction, whether the Agent [Distribution Agent] shall have the option referred to in Section 3(c) below to increase the number of Shares to be sold by the Company and purchased by the Agent [Distribution Agent] acting as principal on such Purchase Date; and
(viv) the minimum lowest price (if any) below at which no sale of Shares the Company shall be made obligated to sell Shares in such Transaction (a “Floor Price”).
Appears in 1 contract
Sources: Distribution Agreement
Transaction Notices. (a) The Company may, from time to time during the Term, propose to the Agent ▇▇▇▇▇▇▇ ▇▇▇▇▇ that they enter into an Agency Transaction or Principal Transaction to be executed on a one or more specified Exchange Business DayDays. If the Agent ▇▇▇▇▇▇▇ ▇▇▇▇▇ agrees to the terms of such proposed Transaction or if the Company and the Agent ▇▇▇▇▇▇▇ ▇▇▇▇▇ mutually agree to modified terms for such proposed Transaction, then the Agent ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall promptly send to the Company a notice, substantially in the form of Exhibit A hereto (each, a “Transaction Notice”), confirming the agreed terms of such proposed Transaction. If the Company wishes such proposed Transaction to become a binding agreement between it and the Agent▇▇▇▇▇▇▇ ▇▇▇▇▇, the Company shall promptly indicate its acceptance thereof by countersigning and returning such Transaction Notice to the Agent ▇▇▇▇▇▇▇ ▇▇▇▇▇ or by sending a written notice to the Agent ▇▇▇▇▇▇▇ ▇▇▇▇▇ (by any means permissible under Section 12 hereofbelow) indicating its acceptance. The terms reflected in a Transaction Notice shall become binding on the Agent ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company only if accepted by the Company no later than the times specified in Section 3(b) below. Each Transaction Notice shall specify, among other things:
(i) whether the Transaction is an Agency Transaction or a Principal Transaction;
(ii) the Exchange Business Day Day(s) on which the Shares subject to such Agency or Principal Transaction are intended to be sold (the each such date, a “Purchase Date”);
(iii) the number of Shares that the Company intends to sell (the “Specified Number of Shares”) on such Purchase Date, which shall be no less than 5% and no more than 25% of the average daily trading volume in the Common Stock on the Exchange for the thirty (30) Exchange Business Days preceding the date of delivery of the Transaction NoticeDate(s);
(iv) in the case of a Principal Transaction, whether the Company will shall grant to ▇▇▇▇▇▇▇ ▇▇▇▇▇ the Agent option referred to in Section 3(c) below to increase the right number of Shares to elect to purchase additional Shares in accordance with subsection (c) below;be sold by the Company and purchased by ▇▇▇▇▇▇▇ ▇▇▇▇▇ acting as principal on such Purchase Date; and
(v) in the case of a purchase of Shares by the Agent acting as principalPrincipal Transaction, whether the Agent ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have the option referred to in Section 3(c) below to increase the number of Shares to be sold by the Company and purchased by the Agent ▇▇▇▇▇▇▇ ▇▇▇▇▇ acting as principal on such Purchase Date; and
(vi) the minimum lowest price (if any) below at which no sale of Shares the Company shall be made obligated to sell Shares in such Transaction (a “Floor Price”). A Transaction Notice shall not set forth a Specified Number of Shares that, when added to the aggregate number of Shares previously purchased and to be purchased pursuant to pending Transaction Notices (if any) hereunder, results in a total that exceeds the Maximum Number of Shares. The Company shall have responsibility for maintaining records with respect to the aggregate dollar amount of Shares sold, or for otherwise monitoring the availability of Shares for sale under the Registration Statement as amended or supplemented from time to time. There shall be no more than one Transaction Notice and one related Transaction with respect to any Purchase Date. A Transaction Notice conforming to the foregoing requirements, once accepted by the Company, shall be irrevocable, and the Company shall be obligated to sell the Specified Number of Shares (subject to increase pursuant to Section 3(c) below) and ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be obligated, subject to the terms of, and satisfaction of, the conditions set forth in this Agreement and such Transaction Notice, including, but not limited to, Section 1(f) above and Section 3(f) below, to (x) in Agency Transactions, use its commercially reasonable efforts to solicit offers for the Shares, and (y) in Principal Transactions, purchase such Shares in accordance with the terms and conditions of this Agreement and such Transaction Notice. Notwithstanding the foregoing, if the terms of any Agency Transaction or Principal Transaction contemplate that Shares shall be sold on more than one Purchase Date, then the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall mutually agree to such additional terms and conditions as they deem necessary in respect of such multiple Purchase Dates, and such additional terms and conditions shall be set forth in the relevant Transaction Notice and be binding to the same extent as any other terms contained therein.
(b) If the Company’s Common Stock is an “actively-traded security” within the meaning of Rule 101(c)(1) of Regulation M, the Purchase Date in respect of the Shares deliverable pursuant to any Transaction Notice shall be the Exchange Business Day next following the date on which such Transaction Notice is accepted if such acceptance occurs by 4:30 p.m. (New York time) on such acceptance date; provided that if a Transaction Notice is accepted prior to 8:30 a.m. (New York time) on an Exchange Business Day (or by such later time as ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ agree in its sole discretion), the Purchase Date in respect of such Shares shall be such date of acceptance. If the Company’s Common Stock is not an “actively-traded security” within the meaning of Rule 101(c)(1) of Regulation M, the Purchase Date in respect of the Shares deliverable pursuant to any Transaction Notice shall be the second Exchange Business Day next following the date on which such Transaction Notice is accepted if such acceptance occurs by 4:30 p.m. (New York time) on such acceptance date. For Principal Transactions, the price per Share to be paid by ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Company for the purchase of any such Shares pursuant to this Agreement shall be based on the closing price of the Company’s Common Stock and shall be agreed between ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company and set out in the applicable Transaction Notice and set forth on such Transaction Notice as a net sales price, reflecting ▇▇▇▇▇▇▇ ▇▇▇▇▇’ commission (the “Net Sales Price”). For Agency Transactions, ▇▇▇▇▇▇▇ ▇▇▇▇▇’▇ commission shall be 2.5% of the actual sales price of the Shares (the “Agency Transaction Gross Sales Price”).
(c) If specified in a Transaction Notice for a Principal Transaction, the Company may grant to ▇▇▇▇▇▇▇ ▇▇▇▇▇ the option to elect, by notice to the Company delivered not later than 4:30 p.m. (New York time) on the relevant Purchase Date, to increase the number of Shares to be sold by the Company and purchased by ▇▇▇▇▇▇▇ ▇▇▇▇▇ acting as principal on such Purchase Date, provided that such number of Shares to be sold by the Company, when added to the aggregate number of Shares previously purchased and to be purchased pursuant to pending Transaction Notices (if any) hereunder, shall not exceed the Maximum Number of Shares. The Specified Number of Shares to be sold by the Company on any Purchase Date, as it may be increased pursuant to this paragraph (c), is hereinafter referred to as the “Purchased Number of Shares” in respect of such Purchase Date.
(d) If the Purchased Number of Shares for any Purchase Date exceeds 50% of the total number of shares of Common Stock traded on the Exchange during regular trading hours on the Purchase Date, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, at its option, elect to reduce the Purchased Number of Shares to 50% of such total number of shares traded. If ▇▇▇▇▇▇▇ ▇▇▇▇▇ has elected to purchase Shares pursuant to the option granted to it by the Company discussed in Section 3(c) above, any reduction in Shares required by this Section 3(d) shall be first made from such Shares.
(e) Payment of the Net Sales Price for Shares sold by the Company on any Purchase Date pursuant to a Transaction Notice shall be made to the Company by federal funds wire transfer to the account set forth on Exhibit D hereto, against delivery of such Shares to: (x) the accounts specified in writing by ▇▇▇▇▇▇▇ ▇▇▇▇▇ for sales made by ▇▇▇▇▇▇▇ ▇▇▇▇▇ acting as agent, or (y) ▇▇▇▇▇▇▇ ▇▇▇▇▇ through the facilities of the Depository Trust Company for purchase from the Company by ▇▇▇▇▇▇▇ ▇▇▇▇▇ acting as principal. Such payment and delivery shall be made at or about 10:00 a.m., local time in New York, New York, on the third Exchange Business Day (or such other day as may, from time to time, become standard industry practice for settlement of such a securities issuance) following each Purchase Date (the “Closing Date”).
(f) If, as provided in the related Transaction Notice, a Floor Price has been agreed to by the parties with respect to a Transaction, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ thereafter determines and notifies the Company that the Gross Sales Price for such Transaction would not be at least equal to such Floor Price, then the Company shall not be obligated to issue and sell to or through ▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall not be obligated to purchase or place, the Specified Number of Shares for such Transaction, except that ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, at its option, elect to have the Gross Sales Price for such Transaction equal such Floor Price in which case the parties shall be obligated to consummate such Transaction on that basis.
(g) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Transaction Notice shall be suspended until that or another exemptive provision shall have been satisfied in the judgment of each party. ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company shall each calculate on a weekly basis the ADTV (as defined by Rule 100 of Regulation M) of the Common Stock.
Appears in 1 contract
Sources: Distribution Agreement (Harvest Natural Resources, Inc.)