Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to sell to the several Underwriters the Company Shares and each of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, at the price per share of $_______, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth above in this Section 3(a), that number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. (b) Consummation of the purchase of the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date. (c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the Underwriters.
Appears in 1 contract
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but and subject to the terms and conditions herein set forth, the Company agrees to sell to the several Underwriters issue and the Company Shares and each of the Selling Stockholders selling Stockholder Shares agreesagree, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, at the price per share of $_______, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agreesagree, severally and not jointly, to purchase from in the Company, at the purchase price per share percentages set forth above in this Section 3(a)Schedule C hereto, that number all of Additional the Excess Unsubscribed Shares as determined in accordance with paragraph 3(c) below, plus any additional number at a price of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof$5.00 per share.
(b) Consummation In addition, on the basis of the purchase representations, warranties, covenants and agreements herein contained and upon not less than two business days' notice from the Underwriters, for a period of 20 days after the Firm Shares by Expiration Date, the Selling Stockholders agree to sell to the Underwriters shall be made at the offices all or part of ▇▇▇▇▇▇ up to 640,000 Option Shares (representing 478,240, 124,630 and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ 37,130 Option Shares being sold by ▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC"respectively) at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering a purchase price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), $5.00 per share for the sole purpose of covering over-allotments that may be made in connection with the offering and distribution of the shares of Common Stock. The Underwriters may exercise their option to purchase all or any portion of the Option Shares from the Company up to two times, provided that the aggregate number of Option Shares purchased by the Underwriters shall not exceed 640,000. Delivery of the Option Shares shall be made concurrently with payment therefor. Option Shares may be purchased by the Underwriters only for the purpose of covering over-allotments that may be made in connection with the offering and distribution of the shares of Common Stock. No Option Shares shall be delivered unless the Excess Unsubscribed Shares (if any are purchased by the Underwriters) shall be simultaneously delivered or shall theretofore have been delivered as herein provided.
(c) Payment of the respective aggregate purchase prices of the Excess Unsubscribed Shares purchased from the Company and the Selling Stockholders shall be made by the Underwriters on the Closing Date by wire transfer in same day funds, payable to or upon the order of the Company and the Selling Stockholders at the offices of Wheat, First Securities, Inc. at Riverfront Plaza, West Tower, ▇▇▇ ▇. ▇▇▇▇ Street, Richmond, Virginia 23219, or at such other place as shall be agreed upon by the Underwriters and the Company, upon delivery of certificates (in form and substance satisfactory to the Underwriters) representing the Excess Unsubscribed Shares to the Underwriters. Delivery and payment for the Excess Unsubscribed Shares shall be made at the Closing. In addition, in the sale event that any or all of Firm the Option Shares are purchased by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date payment of the Prospectuspurchase price for, by written notice and delivery of certificates for, such Option Shares shall be made at the above mentioned office or at such other place as shall be agreed upon by the Representatives Underwriters and the Company, on each Option Closing Date as specified in the notice from the Underwriters to the Company. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Excess Unsubscribed Shares and the Option Shares, if any, shall be in definitive, fully registered form, shall bear no restrictive legends and shall be in such denominations and registered in such name or names and in such authorized denominations as the Representatives Underwriters may request in writing at least two full business days prior to the Additional Closing Date or the relevant Option Closing Date, as the case may be. The Company will permit the Representatives to examine and package such certificates for delivery the Excess Unsubscribed Shares and the Option Shares, if any, shall be made available to the Underwriters at DTC at least one full such office or such other place as the Underwriters may designate for inspection, checking and packaging not later than 9:30 a.m., New York City time, on the last business day prior to the Additional Closing Date or the relevant Option Closing Date. If , as the option is exercised in full, case may be.
(d) Delivery of certificates representing the number shares of Additional Shares Common Stock to be sold by pursuant to the exercise of the Rights, and the payment of the subscription price therefor to the Company and the Selling Stockholders shall be as is set forth opposite its names made at the Closing on Schedule III attached hereto. In the event that Closing Date pursuant to the option is exercised in partRights Agent Agreement, the number irrespective of Additional whether or not any Excess Unsubscribed Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares are to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of at such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the UnderwritersClosing.
Appears in 1 contract
Sources: Standby Underwriting Agreement (Oao Technology Solutions Inc)
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to sell to the several Underwriters the Company Shares and each of the Company and each Initial Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, each Underwriter and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholderspurchase, at the a purchase price of $ per share of $_______share, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate that number of Firm Shares (rounded up or down, as determined by Bear ▇▇▇▇▇▇▇ in its discretion, in order to be sold avoid fractions) obtained by multiplying the Company Shares, in the case of the Company, and each the number of such Selling Stockholders, as Firm Shares set forth opposite their respective names the name of such Initial Selling Stockholder in Schedule III II hereto, in the case of a Initial Selling Stockholder, in each case by a fraction, fraction the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate total number of Firm Shares to be purchased by all the Underwriters hereunderShares, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth above in this Section 3(a), that number of Additional Shares as determined in accordance together with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Consummation Certificates accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed for the Shares to be sold by the Selling Stockholders hereunder have been placed in custody, for delivery under this Agreement, under Custody Agreements made with the Custodian. Each Selling Stockholder agrees that the Shares represented by the certificates held in custody for the Selling Stockholder under such Custody Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and that the obligations of the Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death of any individual Selling Stockholder or the occurrence of any other event, or in the case of a trust, by the death of any trustee or trustees or the termination of such trust. If any individual Selling Stockholder or any such trustee or trustees should die, or if any other such event should occur, or if any of such trusts should terminate, before the delivery of the Shares hereunder, certificates for such Shares shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death or other event or termination had not occurred, regardless of whether or not the Custodian shall have received notice of such death or other event or termination.
(c) Payment of the purchase price for, and delivery of certificates representing, the Firm Shares by the Underwriters shall be made by the Company and the Custodian at the offices office of ▇▇Pillsbury Winthrop LLP, ▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (“Company Counsel”), or at such other location place as may shall be mutually acceptable to the Representatives, the Attorneys-in-Fact agreed upon by Bear ▇▇▇▇▇▇▇ and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m.A.M., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) fourth business day (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of under the RegulationsSecurities Act, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) fourth business day after the determination of the initial public offering price of the Shares), or such other time not later than 15 ten business days after such date as shall be agreed upon by the Representatives Bear ▇▇▇▇▇▇▇ and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"“Closing Date”). .
(d) Payment of the purchase price for the Firm Shares shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar transfer in same day funds payable to the order of the Company in the case of shares of Firm Shares and to the custodian order of the Custodian for the benefit of the Initial Selling StockholdersStockholders in the case of shares of Firm Shares, against in each case upon delivery of certificates for the Firm Shares to Bear ▇▇▇▇▇▇▇ through the Representatives facilities of The Depository Trust Company for the respective accounts of the Underwriters of certificates for the Shares to be purchased by themseveral Underwriters. Certificates for the Firm Shares shall be registered in such name or names and shall be in such authorized denominations as the Representatives Bear ▇▇▇▇▇▇▇ may request in writing at least two full business days prior to before the Closing Date. The Company and the Selling Stockholders will permit the Representatives Bear ▇▇▇▇▇▇▇ to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(ce) In addition, on the Companybasis of the representations, as warranties, covenants and agreements herein contained, but subject to the extent indicated on Schedule III attached heretoterms and conditions herein set forth, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Additional Selling Stockholders Stockholders, severally but not jointly, hereby grant to the Underwriters, acting severally and not jointly, the option to purchase, at the purchase price per Share to be paid for the Company Firm Shares, the respective numbers of Additional Shares obtained by multiplying the number of Additional Shares specified in such notice by a fraction the numerator of which is, in the case of the Company, and, in the case of the Additional Selling Stockholders, the number of shares set forth opposite the names of such Additional Selling Stockholder in Schedule II hereto and the Stockholder denominator of which is the total number of Additional Shares as set forth in Section 3(a(subject to adjustment by Bear ▇▇▇▇▇▇▇ to eliminate fractions), . Such Additional Shares may only be purchased for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion onlyat any time and from time to time, in whole or in partpart on one or more occasions, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives Bear ▇▇▇▇▇▇▇ to the CompanyCompany or such Selling Stockholder. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised and the date and time, as reasonably determined by the RepresentativesBear ▇▇▇▇▇▇▇, when the certificates relating to the Additional Shares are to be delivered (any such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"“Additional Closing Date”); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, exercised (unless such time and date are postponed in accordance with the provisions of Section 10 hereof). Upon any exercise of the option as to all or any portion of the Additional Shares, each Underwriter, acting severally and not jointly, will purchase that proportion of the total number of Additional Shares then being purchased which the number of Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto (or such number increased as set forth in Section 10 hereof) bears to the total number of Firm Shares that the Underwriters have agreed to purchased hereunder, subject, however, to such adjustments to eliminate any fractional shares as Bear ▇▇▇▇▇▇▇, in its sole discretion shall make.
(f) Payment of the purchase price for, and delivery of certificates representing, the Additional Shares shall be made by the Company and the Custodian at the office of Company Counsel, or at such other place as shall be agreed upon by Bear ▇▇▇▇▇▇▇ and the Company, at 10:00 A.M., New York time, on the Additional Closing Date, or such other time as shall be agreed upon by Bear ▇▇▇▇▇▇▇ and the Company.
(g) Payment of the purchase price for the Additional Shares shall be made by wire transfer in same day funds to the Company or the Custodian for the benefit of the Company or the Additional Selling Stockholders, as the case may be, upon delivery of certificates for the Additional Shares to Bear ▇▇▇▇▇▇▇ through the facilities of The Depository Trust Company for the respective accounts of the several Underwriters. Certificates for the Additional Shares shall be registered in such name or names and shall be in such authorized denominations as the Representatives Bear ▇▇▇▇▇▇▇ may request in writing at least two full business days prior to before the Additional Closing Date. The Company will permit the Representatives Bear ▇▇▇▇▇▇▇ to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the Underwriters.
Appears in 1 contract
Sources: Underwriting Agreement (Synnex Information Technologies Inc)
Purchase, Sale and Delivery of the Shares. (a) The Firm Shares. The Company agrees to issue and sell to the several Underwriters the Firm Shares upon the terms herein set forth. On the basis of the representations, warranties, covenants warranties and agreements herein contained, and upon the terms but subject to the terms and conditions herein set forth, the Company agrees to sell to the several Underwriters the Company Shares and each of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, at the price per share of $_______, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agreesagree, severally and not jointly, to purchase from the Company, at Company the respective number of Firm Shares set forth opposite their names on Schedule A. The ---------- purchase price per share set forth above in this Section 3(a), that number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated Firm Share to purchase pursuant be paid by the several Underwriters to the provisions of Section 10 hereof.Company shall be $[___] per share. Replace the initial paragraph with the following text if Selling Stockholders are offering the Firm Shares:
(ba) Consummation of The Firm Shares. The Selling Stockholders agree to sell to the purchase of several Underwriters the Firm Shares upon the terms set forth herein, each Selling Stockholder selling the number of Firm Shares set forth opposite such Selling Stockholder's name on Schedule B. On the basis of the representations, ---------- warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from the Selling Stockholders the respective number of Firm Shares set forth opposite their names on Schedule B. The purchase price per Firm ---------- Share to be paid by the several Underwriters to the Selling Stockholders shall be made at $[___] per share. Replace the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance initial paragraph with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, text if the Company has elected to rely upon Rule 430A of and Selling Stockholders are offering the RegulationsFirm Shares: ---
(a) The Firm Shares. Upon the terms herein set forth, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Acti) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time agrees to issue and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made sell to the Company several Underwriters an aggregate of [___] Firm Shares and the custodian for (ii) the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable agree to sell to the order several Underwriters an aggregate of [___] Firm Shares, each Selling Stockholder selling the number of Firm Shares set forth opposite such Selling Stockholder's name on Schedule B. On the basis of the Company representations, warranties and agreements ---------- herein contained, and upon the custodian for the Selling Stockholders, against delivery terms but subject to the Representatives for the respective accounts of conditions herein set forth, the Underwriters of certificates for agree, severally and not jointly, to purchase from the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated respective number of Firm Shares set forth opposite their names on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same A. The purchase price per Firm Share to ---------- be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the Underwriters$[___] per share.
Appears in 1 contract
Purchase, Sale and Delivery of the Shares. (a) On The Company agrees to issue and sell the Firm Shares to the several Underwriters as provided in this Agreement, and each Underwriter agrees, on the basis of the representations, warranties, covenants warranties and agreements set forth herein contained, but and subject to the terms and conditions herein set forthforth herein, the Company agrees to sell to the several Underwriters the Company Shares and each of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, to purchase at a price per share of $35.9062 (the “Purchase Price”) from the Company the respective number of Firm Shares set forth opposite such Underwriter’s name in Schedule I hereto. In addition, the Company agrees to issue and sell the Option Shares to the several Underwriters as provided in this Agreement, and the number Underwriters, on the basis of Stockholder Shares the representations, warranties and agreements set forth opposite herein and subject to the name of such Selling Stockholder on Schedule III attached heretoconditions set forth herein, and each Underwritershall have the option to purchase, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, Option Shares at the price Purchase Price less an amount per share of $_______, the aggregate number of Company Shares equal to any dividends or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold distributions declared by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fractionpayable on the Firm Shares but not payable on the Option Shares. If any Option Shares are to be purchased, the numerator of which is the aggregate number of Firm Option Shares to be purchased by such each Underwriter shall be the number of Option Shares which bears the same ratio to the aggregate number of Option Shares being purchased as the number of Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is (or such number increased as set forth in Section 9 hereof) bears to the aggregate number of Firm Shares to be being purchased by all the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, from the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth above in this Section 3(a), that number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Consummation of the purchase of the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters, subject, however, to such adjustments to eliminate any fractional Shares as the Representatives in their discretion shall make. This The Underwriters may exercise the option may be exercised on one occasion onlyto purchase Option Shares at any time in whole, in whole or from time to time in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by from the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Option Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, time when the certificates relating to the Additional Option Shares are to be delivered (such and paid for, which may be the same date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) tenth full business day (as hereinafter defined) after the date on which the option shall have been exercised, of such notice (unless such time and date are postponed in accordance with the provisions of Section 10 9 hereof). Certificates for the Additional Shares Any such notice shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing given at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine date and package such certificates for time of delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter specified therein.
(as adjusted by the Representatives to eliminate fractional sharesb) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal wire transfer in immediately available funds or similar same day funds, payable to the order account specified by the Company to the Representatives in the case of the Company Firm Shares, at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇Orrick, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP at 10:00 A.M. New York City time on March 18, 2024, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing or, in the case of the Option Shares, on the date and at the time and place specified by the Representatives in the written notice of the Underwriters’ election to purchase such Option Shares. The time and date of such payment for the Firm Shares is referred to herein as the “Closing Date”, and the time and date for such payment for the Option Shares, if other than the Closing Date, is herein referred to as the “Option Closing Date”. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligations of each Underwriter hereunder. The Closing Date, the Option Closing Date and the location as of delivery of, and the form of payment for, the Firm Shares may be mutually acceptable, upon delivery of varied by agreement between the certificates Company and the Representatives. Payment for the Additional Shares to be purchased on the Closing Date or the Option Closing Date, as the case may be, shall be made against delivery to the Representatives for the respective accounts of the Underwritersseveral Underwriters of the Shares to be purchased on such date in definitive form registered in such names and in such denominations as the Representatives shall request in writing not later than two full business days prior to the Closing Date or the Option Closing Date, as the case may be, with any transfer taxes payable in connection with the sale of such Shares duly paid by the Company. Delivery of the Shares shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
Appears in 1 contract
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but subject Subject to the terms and conditions herein set forth, (a) the Company agrees to sell to each of the several Underwriters the Company Shares Underwriters, and each of the Selling Stockholders selling Stockholder Shares Underwriters agrees, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling StockholdersCompany, at the a purchase price per share of $_______11.28 (the “Purchase Price”), the aggregate number of Company Firm Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives you so as to avoid eliminate fractional shares), ) determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, hereunder by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all of the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to from the provisions of Section 10 hereof. In Company hereunder and (b) in the event and to the extent that the Underwriters shall exercise the election to purchase Additional Option Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share Purchase Price, the number of Option Shares (to be adjusted by you so as to eliminate fractional shares) determined by multiplying the number of Option Shares as to which such election shall have been exercised by the fraction set forth above in this Section 3(a), that number of Additional Shares as determined in accordance with paragraph 3(cclause (a) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Consummation of the purchase of the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Dateabove. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option the right to purchase at their election up to _________ Additional Shares 500,000 Option Shares, at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a)Purchase Price, for the sole purpose of covering over-allotments in connection with the sale of the Firm Shares. The Underwriters may exercise their option to acquire Option Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any part from time on or before the thirtieth (30th) calendar day following the date of the Prospectus, to time only by written notice by from the Representatives to the Company. Such notice shall set , given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of Additional Option Shares as to which the option is being exercised be purchased and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional on which such Option Shares are to be delivered (such date and time being herein sometimes referred to delivered, as determined by the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be Representatives but in no event earlier than the Closing Date or or, unless the Representatives and the Company otherwise agree in writing, earlier than the second (2nd) full two or later than ten business day days after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the Underwritersnotice.
Appears in 1 contract
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, warranties and covenants and agreements herein contained, but and subject to the terms and conditions herein set forth, the Company each Seller agrees to sell to the several Underwriters the Company Shares and each of the Selling Stockholders selling Stockholder Shares Underwriter agrees, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholderspurchase, at the a price per share of $________ per share, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate hereof, subject to adjustments in accordance with Section 9 hereof. The number of Firm Shares to be purchased by all each Underwriter from each Seller shall be as nearly as practicable in the Underwriters hereunder, plus any additional same proportion to the total number of Firm Shares which such being sold by each Seller as the number of Firm Shares being purchased by each Underwriter may become obligated to purchase pursuant bears to the provisions total number of Section 10 hereofFirm Shares to be sold hereunder. In the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, the Company agrees to sell to each The obligations of the Underwriters, and each of the Underwriters agrees, severally Sellers shall be several and not jointly, to purchase from the Company, at the purchase price per share set forth above in this Section 3(a), that number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereofjoint.
(b) Consummation Certificates in negotiable form for the total number of the purchase Shares to be sold hereunder by the Selling Stockholders have been placed in custody with BankBoston, N.A. d/b/a Boston EquiServe as custodian (the "Custodian") pursuant to the Custodian Agreement executed by each Selling Stockholder for delivery of all Firm Shares and any Option Shares to be sold hereunder by the Selling Stockholders. Each of the Selling Stockholders specifically agrees that the Firm Shares and any Option Shares represented by the certificates held in custody for the Selling Stockholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Stockholders for such custody are to that extent irrevocable, and that the obligations of the Selling Stockholders hereunder shall not be terminable by any act or deed of the Selling Stockholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Stockholder or the dissolution of a corporate Selling Stockholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Firm Shares or the Option Shares hereunder, certificates for the Firm Shares or the Option Shares, as the case may be, shall be delivered by the Underwriters shall Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares held by it against delivery of such Shares.
(c) Payment for the Firm Shares to be sold hereunder is to be made in same day funds via wire transfer to the order of the Company for the shares to be sold by it and to the order of "BankBoston, N.A. d/b/a Boston EquiServe, as Custodian" for the shares to be sold by the Selling Stockholders, in each case against delivery of certificates therefor to the Representatives for the several accounts of the Underwriters. Such delivery is to be made at the offices of Alex. Brow▇ & ▇▇▇▇▇▇ and ▇▇▇▇▇ons Incorporated, LLP, ▇▇▇ ▇1 So▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at ▇▇ 10:00 a.m., New York Baltimore time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following after the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third this Agreement or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or at such other time and date not later than 15 five business days after such date thereafter as shall be agreed upon by the Representatives you and the Company (shall agree upon, such time and date of payment and delivery being herein called referred to as the "CLOSING DATEClosing Date." (As used herein, "). Payment shall business day" means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and not permitted by law or executive order to be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of closed.) The certificates for the Firm Shares to will be purchased by them. Certificates for the Shares shall be registered delivered in such name or names denominations and in such authorized denominations registrations as the Representatives may request in writing at least two not later than the second full business days day prior to the Closing Date. The Company , and the Selling Stockholders will permit be made available for inspection by the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(cd) In addition, on the Company, as basis of the representations and warranties herein contained and subject to the extent indicated terms and conditions herein set forth, the certain Selling Stockholders listed on Schedule III attached hereto, hereto hereby grants collectively grant an option to the several Underwriters an option to purchase up to _________ Additional the Option Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares per share as set forth in the first paragraph of this Section 3(a2. The maximum number of Option Shares to be sold by each Selling Stockholder is set forth opposite such Selling Stockholder's name on Schedule III hereto. The obligations of the Selling Stockholders under this Section 2(d) are several and not joint. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representatives of the several Underwriters, to the Company, the Attorney-in-Fact, and the Custodian setting forth the number of Option Shares as to which the several Underwriters are exercising the option, the names and denominations in which the Option Shares are to be registered and the time and date at which such certificates are to be delivered. If the option granted hereby is exercised in part, the respective number of Option Shares to be sold by each of the Selling Stockholders listed in Schedule III hereto shall be determined on a pro rata basis in accordance with the percentages set forth opposite their names on Schedule III hereto, adjusted by you in such manner as to avoid fractional shares. The time and date at which certificates for Option Shares are to be delivered shall be determined by the Representatives but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the "Option Closing Date"). If the date of exercise of the option is three or more days before the Closing Date, for the sole purpose notice of covering exercise shall set the Closing Date as the Option Closing Date. The number of Option Shares to be purchased by each Underwriter shall be in the same proportion to the total number of Option Shares being purchased as the number of Firm Shares being purchased by such Underwriter bears to the total number of Firm Shares, adjusted by you in such manner as to avoid fractional shares. The option with respect to the Option Shares granted hereunder may be exercised only to cover over-allotments in the sale of the Firm Shares by the Underwriters. You, as Representatives of the several Underwriters. This , may cancel such option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, prior to its expiration by giving written notice by the Representatives of such cancellation to the CompanyCompany and the Attorney-in-Fact. Such notice shall set forth To the aggregate number of Additional Shares as to which extent, if any, that the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates payment for the Additional Option Shares shall be registered made on the Option Closing Date in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior same day funds via wire transfer to the Additional Closing Date. The Company will permit order of "BankBoston, N.A. d/b/a Boston EquiServe, as Custodian" for the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Option Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number Selling Stockholders against delivery of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company certificates therefor at the offices of Alex. Brow▇ & ▇▇▇▇▇▇ and ▇▇▇▇▇ons Incorporated, LLP, ▇▇▇ ▇1 So▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇.
(e) If on the Closing Date or Option Closing Date, as the case may be, any Selling Stockholder fails to sell the Firm Shares or Option Shares which such Selling Stockholder has agreed to sell on such date as set forth in Schedule II or Schedule III hereto, the Company agrees that it will sell or arrange for the sale of that number of shares of Common Stock to the Underwriters which represents Firm Shares or the Option Shares which such Selling Stockholder has failed to so sell, as set forth in Schedule II or Schedule III hereto, or such other location lesser number as may be mutually acceptable, upon delivery of requested by the certificates for the Additional Shares to the Representatives for the respective accounts of the UnderwritersRepresentatives.
Appears in 1 contract
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants warranties and agreements set forth herein contained, but and subject to the terms and conditions herein set forthforth herein, (i) the Company agrees to sell to the several Underwriters the Company Shares each Underwriter, and each of the Selling Stockholders selling Stockholder Shares Underwriters agrees, severally and not jointly, to sell to purchase from the several Underwriters Company, the respective number of Stockholder Firm Shares set forth opposite the such Underwriter’s name of such Selling Stockholder on in Schedule III attached A hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, at the a price per share of $_______, 167.58 (the aggregate number of Company Shares or Stockholder Shares, as the case may be “Purchase Price”) and (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names ii) in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters shall elect to exercise the election their right to purchase Additional Option Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the UnderwritersUnderwriter, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth above in this Section 3(aOption Purchase Price (as defined below), that portion of the number of Additional Option Shares as to which such election shall have been made (to be adjusted by the Representative so as to eliminate fractional shares) determined in accordance with paragraph 3(c) below, plus any additional by multiplying such number of Option Shares by a fraction, the numerator of which is the number of Firm Shares that such Underwriter may become is obligated to purchase pursuant to as set forth opposite the provisions name of Section 10 hereof.
(b) Consummation such Underwriter in Schedule A hereto and the denominator of which is the purchase total number of the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts all of the Underwriters of certificates for the Shares are obligated to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. purchase hereunder.
b) The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters the right to purchase at their election up to 1,315,789 Option Shares at the Purchase Price less an amount per share equal to any dividends or distributions declared by the Company and payable on the Firm Shares but not payable on the relevant Option Shares (the “Option Purchase Price”). The Underwriters may exercise the option to purchase up to _________ Additional Option Shares at the same purchase price any time in whole, or from time to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or time in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by from the Representatives Representative to the Company. Such notice shall set forth the aggregate number of Additional Option Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, time when the certificates relating to the Additional Option Shares are to be delivered (such and paid for, which may be the same date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date or earlier later than the second (2nd) fifth full business day (as hereinafter defined) after the date on which the option shall have been exercised nor later than the eighth of such notice (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof). Certificates for the Additional Shares Any such notice shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing given at least two full business days prior to the Additional Closing Datedate and time of delivery specified therein.
c) The Company understands that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness of this Agreement as in the judgment of the Representative is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The Company will permit acknowledges and agrees that the Representatives to examine Underwriters may offer and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional sell Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number or through any affiliate of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional sharesan Underwriter.
d) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal wire transfer in immediately available funds or similar same day funds, payable to the order of account specified to the Representative by the Company in connection with a closing at the offices of ▇O’Melveny & ▇▇▇▇▇ and ▇▇▇▇▇LLP at 10:00 A.M., LLPNew York City time, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇on August 11, ▇▇▇▇▇ ▇▇▇▇2017, ▇▇▇▇▇▇, ▇▇▇▇▇, or at such other time or place on the same or such other location date, not later than the fifth business day thereafter, as the Representative and the Company may be mutually acceptableagree upon in writing or, upon delivery in the case of any Option Shares, on the date and at the time and place specified by the Representative in the written notice of the certificates Underwriters’ election to purchase such Option Shares. The time and date of such payment for the Firm Shares is referred to herein as the “Closing Date”, and the time and date for such payment for any Option Shares, if other than the Closing Date, is herein referred to as an “Additional Closing Date.”
e) Payment for the Shares to be purchased on the Representatives Closing Date or any Additional Closing Date, as the case may be, shall be made against delivery to the Representative for the respective accounts of the Underwritersseveral Underwriters of the Shares to be purchased on such date or the relevant Additional Closing Date with any transfer taxes payable in connection with the sale of such Shares duly paid by the Company. Delivery of the Shares shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Representative shall otherwise instruct. The certificates for the Shares will be made available for inspection and packaging by the Representative at the office of DTC or its designated custodian not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date or the relevant Additional Closing Date, as the case may be.
Appears in 1 contract
Sources: Underwriting Agreement (Thermo Fisher Scientific Inc.)
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but subject Subject to the terms and conditions herein set forth, (a) the Company agrees to issue and sell to each of the several Underwriters the Company Shares Underwriters, and each of the Selling Stockholders selling Stockholder Shares Underwriters agrees, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling StockholdersCompany, at the a purchase price per share of $_______2.35, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In (b) in the event and to the extent that the Underwriters shall exercise the election to purchase Additional Optional Shares as provided in paragraph 3(c) below, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth above in clause (a) of this Section 3(a)2, that portion of the number of Additional Optional Shares as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional shares) determined in accordance with paragraph 3(c) below, plus any additional by multiplying such number of Optional Shares by a fraction, the numerator of which is the maximum number of Optional Shares which such Underwriter may become obligated is entitled to purchase pursuant as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of Optional Shares that all of the Underwriters are entitled to the provisions of Section 10 hereofpurchase hereunder.
(b) Consummation The Company hereby grants to the Underwriters the right to purchase at their election up to 1,020,000Optional Shares, at the purchase price per share set forth in the paragraph above, for the sole purpose of covering overallotments in the sale of the Firm Shares. Any such election to purchase Optional Shares may be exercised only by written notice from you to the Company, given within a period of 30 calendar days after the date of this Agreement, setting forth the aggregate number of Optional Shares to be purchased and the date - 14 - on which such Optional Shares are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 2(e) hereof) or, unless you and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
(c) It is understood that each Underwriter has authorized the Representative, for such Underwriter's account, to accept delivery of, receipt for, and make payment of the purchase price for, the Firm Shares and the Optional Shares, if any, which such Underwriter has agreed to purchase. Sandler ▇'▇▇▇▇▇ & Partners, L.P., individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Firm Shares or the Optional Shares, if any, to be purchased by any Underwriter whose funds have not been received by Sandler ▇'▇▇▇▇▇ & Partners, L.P. by the relevant Time of Delivery but such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Upon the authorization by you of the release of the Firm Shares, the several Underwriters propose to offer the Firm Shares for sale upon the terms and conditions set forth in the Prospectus.
(e) The Shares to be purchased by each Underwriter hereunder, in definitive form, and in such authorized denominations and registered in such names as the Representative may request (or in the form of one or more global certificates deposited with DTC and registered in the name of Cede & Co., as nominee for DTC) upon at least forty-eight hours prior notice to the Company shall be delivered by or on behalf of the Company to the Representative, through the facilities of the Depository Trust Company ("DTC"), for the account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same day) funds to the account specified by the Company, to the Representative at least forty-eight hours in advance. The Company will cause the certificates representing the Shares to be made available for checking and packaging at least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the office of DTC or its designated custodian (the "Designated Office"). The time and date of such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., Eastern Time, on December 17, 2010 or such other time and date as the Representative and the Company may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date specified by the Representative in the written notice given by the Representative of the Underwriters' election to purchase such Optional Shares, or such other time and date as the Representative and the Company may agree upon in writing. Such time and date for delivery of the Firm Shares is herein called the "First Time of Delivery," such time and date for delivery of the Optional Shares, if not the First Time of Delivery, is herein called the "Second Time of Delivery," and each such time and date for delivery is herein called a "Time of Delivery."
(f) The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 3 hereof, including the cross receipt for the Shares and any additional documents requested by the Underwriters shall pursuant to Section 5(k) hereof, will be made delivered at the offices of ▇▇▇▇▇▇ and ▇, Halter & ▇▇▇▇▇, LLP, ▇▇▇ LLP, 1400 KeyBank Center, - 15 - ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices of ▇▇ ▇▇▇▇▇ (the "Closing Location"), and ▇▇▇▇▇the Shares will be delivered at the Designated Office, LLPall at such Time of Delivery. A meeting will be held at the Closing Location at 3:30 p.m., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇Eastern Time, ▇▇▇▇▇ ▇▇▇▇on the New York Business Day next preceding such Time of Delivery, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery at which meeting the final drafts of the certificates for the Additional Shares documents to be delivered pursuant to the Representatives preceding sentence will be available for review by the respective accounts parties hereto. For the purposes of the Underwritersthis Section 2, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close.
Appears in 1 contract
Purchase, Sale and Delivery of the Shares. (aA) On the basis of the representations, warranties, covenants and agreements herein contained, but of the Company contained in this Agreement and subject to the terms and conditions herein set forthforth in this Agreement, the Company agrees to sell to the several Underwriters the Company Shares and each of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, at the price per share of $_______, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the a purchase price per share set forth above in this Section 3(a), that number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Consummation of the purchase of the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to ___$______ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(aper Share ("PURCHASE PRICE"), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the respective number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached heretoto this Agreement (subject to adjustment as provided in Section 8 of this Agreement).
(B) On the basis of the several (and not joint) representations, warranties, covenants and agreements of the Underwriters contained in this Agreement and subject to the terms and conditions set forth in this Agreement, the Company and the Selling Stockholders grant an option to the several Underwriters to purchase from the Company all or a portion of the respective number of Option Shares set forth opposite the name of such Underwriter on Schedule I to this Agreement (subject to adjustment as provided in Section 8 of this Agreement) and to purchase from each Selling Stockholder all or a portion (on a pro rata basis) of the respective number of Option Shares set forth opposite the name of such Underwriter on Schedule I to this Agreement (subject to adjustment as provided in Section 8 of this Agreement) at the Purchase Price. Payment for This option may be exercised only to cover over-allotments in the Additional sale of the Firm Shares by the Underwriters and may be exercised in whole or in part at any time (but not more than once) on or before the 45th day after the date of the Prospectus upon written, telecopied or telegraphic notice by the Representatives to the Company setting forth the aggregate number of Option Shares as to which the several Underwriters are exercising the option and the settlement date. If the option to purchase the Option Shares is exercised, the Option Shares shall be purchased severally, and not jointly, by each Underwriter, in the same proportion that the number of Firm Shares set forth opposite the name of the Underwriter in Schedule I to this Agreement bears to the total number of Firm Shares to be purchased by the Underwriters under Section 2(a) above, subject to such adjustments as the Representatives in its absolute discretion shall make to eliminate any fractional Shares. Delivery of Option Shares, and payment therefor, shall be made as provided in Section 2(c), Section 2(d) and Section 2(e) below. If the option to purchase the Option Shares is exercised, certificates in negotiable form for the Option Shares to be sold by the Selling Stockholders hereunder will be placed in custody, for delivery under this Agreement, under Custody Agreements made with _____________, as custodian ("CUSTODIAN"). Each Selling Stockholder agrees that the shares represented by the certificates held in custody for the Selling Stockholders under such Custody Agreements are subject to the interests of the Underwriters hereunder, that the arrangements made by certified the Selling Stockholders for such custody are to that extent irrevocable, and that the obligations of the Selling Stockholders hereunder shall not be terminated by operation of law, whether by the death of any individual Selling Stockholder or official bank checkthe occurrence of any other event, or wiring in the case of federal funds a trust, by the death of any trustee or similar same day funds, payable to trustees or the order termination of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the Underwriters.trust. If
Appears in 1 contract
Sources: Underwriting Agreement (Navidec Inc)
Purchase, Sale and Delivery of the Shares. (a) On The Company agrees to issue and sell the Firm Shares to the several Underwriters as provided in this Agreement, and each Underwriter agrees, on the basis of the representations, warranties, covenants warranties and agreements set forth herein contained, but and subject to the terms and conditions herein set forthforth herein, the Company agrees to sell to the several Underwriters the Company Shares and each of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, to purchase at a price per share of $30.4006 (the “Purchase Price”) from the Company the respective number of Firm Shares set forth opposite such Underwriter’s name in Schedule I hereto. In addition, the Company agrees to issue and sell the Option Shares to the several Underwriters as provided in this Agreement, and the number Underwriters, on the basis of Stockholder Shares the representations, warranties and agreements set forth opposite herein and subject to the name of such Selling Stockholder on Schedule III attached heretoconditions set forth herein, and each Underwritershall have the option to purchase, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, Option Shares at the price Purchase Price less an amount per share of $_______, the aggregate number of Company Shares equal to any dividends or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold distributions declared by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fractionpayable on the Firm Shares but not payable on the Option Shares. If any Option Shares are to be purchased, the numerator of which is the aggregate number of Firm Option Shares to be purchased by such each Underwriter shall be the number of Option Shares which bears the same ratio to the aggregate number of Option Shares being purchased as the number of Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is (or such number increased as set forth in Section 9 hereof) bears to the aggregate number of Firm Shares to be being purchased by all the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, from the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth above in this Section 3(a), that number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Consummation of the purchase of the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters, subject, however, to such adjustments to eliminate any fractional Shares as the Representatives in their discretion shall make. This The Underwriters may exercise the option may be exercised on one occasion onlyto purchase Option Shares at any time in whole, in whole or from time to time in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by from the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Option Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, time when the certificates relating to the Additional Option Shares are to be delivered (such and paid for, which may be the same date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) tenth full business day (as hereinafter defined) after the date on which the option shall have been exercised, of such notice (unless such time and date are postponed in accordance with the provisions of Section 10 9 hereof). Certificates for the Additional Shares Any such notice shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing given at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine date and package such certificates for time of delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter specified therein.
(as adjusted by the Representatives to eliminate fractional sharesb) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal wire transfer in immediately available funds or similar same day funds, payable to the order account specified by the Company to the Representatives in the case of the Company Firm Shares, at the offices of L▇▇▇▇▇ & W▇▇▇▇▇▇ and ▇▇▇▇▇LLP at 10:00 A.M. New York City time on December 14, LLP2020, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or at such other time or place on the same or such other location date, not later than the fifth business day thereafter, as the Representatives and the Company may be mutually acceptableagree upon in writing or, upon delivery in the case of the certificates Option Shares, on the date and at the time and place specified by the Representatives in the written notice of the Underwriters’ election to purchase such Option Shares. The time and date of such payment for the Additional Firm Shares is referred to herein as the “Closing Date”, and the time and date for such payment for the Option Shares, if other than the Closing Date, is herein referred to as the “Option Closing Date”. Payment for the Shares to be purchased on the Closing Date or the Option Closing Date, as the case may be, shall be made against delivery to the Representatives for the respective accounts of the Underwritersseveral Underwriters of the Shares to be purchased on such date in definitive form registered in such names and in such denominations as the Representatives shall request in writing not later than two full business days prior to the Closing Date or the Option Closing Date, as the case may be, with any transfer taxes payable in connection with the sale of such Shares duly paid by the Company. Delivery of the Shares shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct.
Appears in 1 contract
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, warranties and covenants and agreements herein contained, but and subject to the terms and conditions herein set forth, the Company agrees to sell to the several Underwriters the Company Shares and each of the Selling Stockholders selling Stockholder Shares Underwriter agrees, severally and not jointly, to sell to the several Underwriters purchase, at a price of $9.30 per share, the number of Stockholder Firm Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, at the price per share of $_______, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares hereof, subject to be purchased by all the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth above in this Section 3(a), that number of Additional Shares as determined adjustments in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 9 hereof.
(b) Consummation Certificates in negotiable form for the total number of the purchase Option Shares to be sold hereunder by the Selling Shareholders have been placed in custody with the Company as custodian (the “Custodian”) pursuant to the Custodian Agreement executed by each Selling Shareholder for delivery of any Option Shares to be sold hereunder by the Selling Shareholders. Each of the Selling Shareholders specifically agrees that any Option Shares represented by the certificates held in custody for the Selling Shareholders under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholders for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholders hereunder shall not be terminable by any act or deed of the Selling Shareholders (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of law (including the death of an individual Selling Shareholder or the dissolution of a corporate Selling Shareholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Option Shares hereunder, certificates for the Options Shares shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares held by it against delivery of such Shares.
(c) Payment for the Firm Shares to be sold hereunder is to be made in Federal (same day) funds to an account designated by the Underwriters shall Company for the shares to be made at the offices sold by it, in each case against delivery of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable certificates therefor to the Representatives, Representatives for the Attorneys-in-Fact and the Company; provided, however, that delivery several accounts of the certificate, evidencing the Firm Shares shall Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day after the date of this Agreement or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “Closing Date.” (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and not permitted by law or executive order to be closed.)
(d) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Selling Shareholders listed on Schedule II hereto hereby grant an option to the several Underwriters to purchase the Option Shares at the price per share as permitted under Rule 15c6set forth in the first paragraph of this Section 2. The maximum number of Option Shares to be sold by the Selling Shareholders is set forth opposite their respective names on Schedule II hereto. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the Closing Date and (ii) at any time, from time to time thereafter within 30 days after the date of this Agreement, by you, as Representatives of the several Underwriters, to the Company, the Attorney-1 under in-Fact, and the Exchange Act) (unless postponed Custodian setting forth the number of Option Shares as to which the several Underwriters are exercising the option and the time and date at which such certificates are to be delivered. If the option granted hereby is exercised in part, the respective number of Option Shares to be sold by each of the Selling Shareholders listed in Schedule II hereto shall be determined on a pro rata basis in accordance with the provisions of Section 10 hereof) following percentages set forth opposite their names on Schedule II hereto, adjusted by you in such manner as to avoid fractional shares. The time and date at which certificates for Option Shares are to be delivered shall be determined by the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time Representatives but shall not be earlier than three nor later than 15 10 full business days after the exercise of such date as shall be agreed upon by option, nor in any event prior to the Representatives and the Company Closing Date (such time and date of payment and delivery being herein called referred to as the "CLOSING DATE"“Option Closing Date”). Payment shall be made to If the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers date of federal funds or similar same day funds payable to the order exercise of the Company and option is three or more days before the custodian for Closing Date, the Selling Stockholders, against delivery to notice of exercise shall set the Representatives for Closing Date as the respective accounts Option Closing Date. The number of the Underwriters of certificates for the Option Shares to be purchased by them. Certificates for the Shares each Underwriter shall be registered in the same proportion to the total number of Option Shares being purchased as the number of Firm Shares being purchased by such Underwriter bears to the total number of Firm Shares, adjusted by you in such name or names and in such authorized denominations manner as the Representatives may request in writing at least two full business days prior to avoid fractional shares. The option with respect to the Closing Date. The Company and the Selling Stockholders will permit the Representatives Option Shares granted hereunder may be exercised only to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering cover over-allotments in the sale of the Firm Shares by the Underwriters. You, as Representatives of the several Underwriters. This , may cancel such option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, prior to its expiration by giving written notice by the Representatives of such cancellation to the CompanyCompany and the Attorney-in-Fact. Such notice shall set forth To the aggregate number of Additional Shares as to which extent, if any, that the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates payment for the Additional Option Shares shall be registered made on the Option Closing Date in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior Federal (same day) funds drawn to the Additional Closing Date. The Company will permit order of “Cardtronics, Inc., as Custodian” for the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Option Shares to be sold by the Company shall be Selling Shareholders against delivery of certificates therefor through the facilities of The Depository Trust Company, New York, New York.
(e) If on the Closing Date or Option Closing Date, as is the case may be, any Selling Shareholder fails to sell the Option Shares which such Selling Shareholder has agreed to sell on such date as set forth opposite its names on in Schedule III attached II hereto. In the event that the option is exercised in part, the Company agrees that it will sell or arrange for the sale of that number of Additional Shares shares of Common Stock to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from Underwriters which represents the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Option Shares which all of the Underwriters are entitled such Selling Shareholder has failed to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is so sell, as set forth opposite the name of such Underwriter on in Schedule I attached II hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location lesser number as may be mutually acceptable, upon delivery of requested by the certificates for the Additional Shares to the Representatives for the respective accounts of the UnderwritersRepresentatives.
Appears in 1 contract
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants warranties and agreements herein contained, but and subject to the terms and conditions herein set forthforth herein, the Company agrees to sell to the several Underwriters the Company Shares Underwriters, and each of the Selling Stockholders selling Stockholder Shares Underwriters agrees, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of (a) the Selling Stockholders, at the price per share of $_______, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto at a purchase price of $67.90 per share and the denominator of which is the aggregate number of Firm Shares to be purchased by all the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In (b) in the event and to the extent that the Underwriters shall exercise the election to purchase Additional Optional Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the several Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth above in this Section 3(a)3, that portion of the number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Consummation of the purchase of the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Optional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option election shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be adjusted so as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate such number of Additional Optional Shares to be sold by the Company by a fraction, the numerator of which is the maximum number of Firm Optional Shares to be purchased by which such Underwriter pursuant is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of Firm Shares which Optional Securities that all of the Underwriters are entitled to purchase pursuant to Schedule I. hereunder. The number of Additional Company will deliver the Firm Shares to be purchased or as instructed by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment Representatives for the Additional Shares shall be made accounts of the several Underwriters in a form reasonably acceptable to the Representatives against payment of the purchase price by certified or official the Underwriters in Federal (same day) funds by wire transfer to an account at a bank check, or wiring of federal funds or similar same day funds, payable acceptable to the Representatives drawn to the order of the Company at the offices office of ▇Cravath, Swaine & ▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇at 9:00 a.m., ▇▇▇▇▇ ▇▇▇▇New York time, ▇▇▇▇▇▇on June 9, ▇▇▇▇▇2008, or at such other location time not later than seven full business days thereafter as may be mutually acceptablethe Representatives and the Company determine, upon such time being herein referred to as the “First Closing Date”. The time and date for the payment and delivery of the certificates Optional Shares, if not the First Closing Date, shall be made in the same manner and at the same office as the payment for the Additional Firm Shares and is herein called the “Second Closing Date”, and each such time and date for delivery is herein called a “Closing Date”. For purposes of Rule 15c6-1 under the Exchange Act, the Closing Date (if later than the otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Shares sold pursuant to the offering. The Shares to be delivered or evidence of their issuance will be made available for checking at the Representatives for the respective accounts office of the UnderwritersDepository Trust Company (“DTC”) or its designated custodian at least 24 hours prior to each Closing Date.
Appears in 1 contract
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but and subject to the terms and conditions herein set forth, the Company agrees to sell to the several Underwriters issue and the Company Shares and each of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, agree to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached heretoUnderwriters, and each Underwriterthe Underwriters agree to purchase, severally and not jointly, agrees to purchase from the Company and each all of the Selling Stockholders, Excess Unsubscribed Shares at the a price per share of $____ per share.
(b) In addition, on the basis of the representations, warranties, covenants and agreements herein contained and upon not less than two business days' notice from the Underwriters, for a period of 20 days after the Expiration Date, the Company and the Selling Stockholders agree to sell to the Underwriters all or part of up to 303,000 Option Shares at a purchase price of $____, _ per share for the sole purpose of covering over-allotments that may be made in connection with the offering and distribution of the shares of Common Stock and/or Excess Unsubscribed Shares. The Company and the Selling Stockholders further agree that 151,500 of the Option Shares will be sold by the Company and that the aggregate number of 151,500 Option Shares will be sold by the Selling Stockholders and that any such exercise will be deemed to be sold on a pro rata basis by the Company Shares or Stockholder Shares, and the Selling Stockholders on the same basis as the case may be (to be adjusted by portion of the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares 3,030,000 shares to be sold by the Company and each of such the Selling Stockholders. The Underwriters may exercise their option to purchase all or any portion of the Option Shares from the Company and the Selling Stockholders up to two times, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is provided that the aggregate number of Firm Option -------- Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth above in this Section 3(a), that number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Consummation of the purchase of the Firm Shares by the Underwriters shall not exceed 303,000. Delivery of the Option Shares shall be made concurrently with payment therefor. Option Shares may be purchased by the Underwriters only for the purpose of covering over-allotments that may be made in connection with the offering and distribution of the shares of Common Stock and/or the Excess Unsubscribed Shares. No Option Shares shall be delivered unless the Excess Unsubscribed Shares (if any are purchased by the Underwriters) shall be simultaneously delivered or shall theretofore have been delivered as herein provided.
(c) Payment of the respective aggregate purchase prices of the Excess Unsubscribed Shares purchased from the Company and the Selling Stockholders shall be made by the Underwriters on the Closing Date by certified or official bank checks in next day funds, payable to or upon the order of the Company and the Selling Stockholders at the offices of ▇.▇. ▇▇▇▇▇▇ and ▇▇▇▇▇Securities Inc., LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or at such other location place as may shall be mutually acceptableagreed upon by the Underwriters and the Company, upon delivery of certificates (in form and substance satisfactory to the Underwriters) representing the Excess Unsubscribed Shares to the Underwriters. Delivery and payment for the Excess Unsubscribed Shares shall be made at the Closing. In addition, in the event that any or all of the Option Shares are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Shares shall be made at the above mentioned office or at such other place as shall be agreed upon by the Underwriters and the Company, on each Option Closing Date as specified in the notice from the Underwriters to the Company. Certificates for the Excess Unsubscribed Shares and the Option Shares, if any, shall be in definitive, fully registered form, shall bear no restrictive legends and shall be in such denominations and registered in such names as the Underwriters may request in writing at least two business days prior to the Closing Date or the relevant Option Closing Date, as the case may be. The certificates for the Additional Excess Unsubscribed Shares and the Option Shares, if any, shall be made available to the Representatives Underwriters at such office or such other place as the Underwriters may designate for inspection, checking and packaging not later than 9:30 a.m., New York City time, on the respective accounts last business day prior to the Closing Date or the relevant Option Closing Date, as the case may be.
(d) Delivery of certificates representing the shares of Common Stock to be sold pursuant to the exercise of the UnderwritersRights, and the payment of the subscription price therefor to the Company and the Selling Stockholders, shall be made at the Closing on the Closing Date, irrespective of whether or not any Excess Unsubscribed Shares are to be purchased by the Underwriters at such Closing.
Appears in 1 contract
Sources: Standby Underwriting Agreement (Sanchez Computer Associates Inc)
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to sell to the several Underwriters the Company Shares and each of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, each Underwriter and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholderspurchase, at the a purchase price per share of $_______[•] per share, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate that number of Firm Shares (rounded up or down, as determined by Bear ▇▇▇▇▇▇▇ in its discretion, in order to be sold avoid fractions) obtained by multiplying the Company and each Firm Shares set forth opposite the name of such Selling Stockholders, as set forth opposite their respective names Stockholder in Schedule III I hereto, by a fraction, fraction the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I II hereto and the denominator of which is the aggregate total number of Firm Shares to be purchased by all the Underwriters hereunderShares, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth above in this Section 3(a), that number of Additional Shares as determined in accordance together with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Consummation Certificates accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed for the Shares to be sold by the Selling Stockholders hereunder have been placed in custody, for delivery under this Agreement, under Custody Agreements made with the Custodian. Each Selling Stockholder agrees that the Shares represented by the certificates held in custody for the Selling Stockholder under such Custody Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and that the obligations of the Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death of any individual Selling Stockholder or the occurrence of any other event, or in the case of a trust, by the death of any trustee or trustees or the termination of such trust. If any individual Selling Stockholder or any such trustee or trustees should die, or if any other such event should occur, or if any of such trusts should terminate, before the delivery of the Shares hereunder, certificates for such Shares shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death or other event or termination had not occurred, regardless of whether or not the Custodian shall have received notice of such death or other event or termination.
(c) Payment of the purchase price for, and delivery of certificates representing, the Firm Shares by the Underwriters shall be made by the Company and the Custodian at the offices office of ▇▇Pillsbury Winthrop LLP, ▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (“Company Counsel”), or at such other location place as may shall be mutually acceptable to the Representatives, the Attorneys-in-Fact agreed upon by Bear ▇▇▇▇▇▇▇ and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m.A.M., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) fourth business day (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of under the RegulationsSecurities Act, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) fourth business day after the determination of the initial public offering price of the Shares), or such other time not later than 15 ten business days after such date as shall be agreed upon by the Representatives Bear ▇▇▇▇▇▇▇ and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"“Closing Date”). .
(d) Payment of the purchase price for the Firm Shares shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar transfer in same day funds payable to the order of the Company and the custodian Custodian for the benefit of the Selling StockholdersStockholders in the case of [•] shares of Firm Shares, against in each case upon delivery of certificates for the Firm Shares to Bear ▇▇▇▇▇▇▇ through the Representatives facilities of The Depository Trust Company for the respective accounts of the Underwriters of certificates for the Shares to be purchased by themseveral Underwriters. Certificates for the Firm Shares shall be registered in such name or names and shall be in such authorized denominations as the Representatives Bear ▇▇▇▇▇▇▇ may request in writing at least two full business days prior to before the Closing Date. The Company and the Selling Stockholders will permit the Representatives Bear ▇▇▇▇▇▇▇ to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(ce) In addition, on the Companybasis of the representations, as warranties, covenants and agreements herein contained, but subject to the extent indicated on Schedule III attached heretoterms and conditions herein set forth, each Additional Selling Stockholder, severally but not jointly, hereby grants to the several Underwriters an Underwriters, acting severally not jointly, the option to purchase up to _________ Additional Shares purchase, at the same purchase price per Share to be paid for the Firm Shares, the respective numbers of Additional Shares obtained by multiplying the several Underwriters to number of Additional Shares specified in such notice by a fraction, the Company numerator of which is the number of Additional Shares set forth opposite the name of such Additional Selling Stockholder in Schedule I hereto and the denominator of which is the total number of Additional Shares (subject to adjustment by Bear ▇▇▇▇▇▇▇ to eliminate fractions); provided, that, in the event the overallotment option is exercised for an amount that is less than the total amount of Additional Shares that would have been purchased if the option were fully exercised, the Additional Shares shall be allocated among the Additional Selling Stockholders for as follows: (i) first from Constant, up to 300,000 Additional Shares, and (ii) the Company remaining Additional Shares, if any, from Silver Star Developments Limited (“Silver Star”). Such Additional Shares and the Stockholder Shares as set forth in Section 3(a), may only be purchased for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion onlyat any time and from time to time, in whole or in partpart on one or more occasions, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives Bear ▇▇▇▇▇▇▇ to the CompanyCompany or such Selling Stockholder. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised and the date and time, as reasonably determined by the RepresentativesBear ▇▇▇▇▇▇▇, when the certificates relating to the Additional Shares are to be delivered (any such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"“Additional Closing Date”); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, exercised (unless such time and date are postponed in accordance with the provisions of Section 10 hereof). Upon any exercise of the option as to all or any portion of the Additional Shares, each Underwriter, acting severally and not jointly, will purchase that proportion of the total number of Additional Shares then being purchased which the number of Firm Shares set forth opposite the name of such Underwriter in Schedule II hereto (or such number increased as set forth in Section 10 hereof) bears to the total number of Firm Shares that the Underwriters have agreed to purchased hereunder, subject, however, to such adjustments to eliminate any fractional shares as Bear ▇▇▇▇▇▇▇, in its sole discretion shall make.
(f) Payment of the purchase price for, and delivery of certificates representing, the Additional Shares shall be made by the Custodian at the office of Company Counsel, or at such other place as shall be agreed upon by Bear ▇▇▇▇▇▇▇ and the Company, at 10:00 A.M., New York time, on the Additional Closing Date, or such other time as shall be agreed upon by Bear ▇▇▇▇▇▇▇ and the Company.
(g) Payment of the purchase price for the Additional Shares shall be made by wire transfer in same day funds to the Custodian for the benefit of the Additional Selling Stockholders upon delivery of certificates for the Additional Shares to Bear ▇▇▇▇▇▇▇ through the facilities of The Depository Trust Company for the respective accounts of the several Underwriters. Certificates for the Additional Shares shall be registered in such name or names and shall be in such authorized denominations as the Representatives Bear ▇▇▇▇▇▇▇ may request in writing at least two full business days prior to before the Additional Closing Date. The Company will permit the Representatives Bear ▇▇▇▇▇▇▇ to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the Underwriters.
Appears in 1 contract
Sources: Underwriting Agreement (Synnex Corp)
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but and subject to the terms and conditions herein set forth, the Company agrees to sell 1,000,000 Firm Shares and the Option Shares to the several Underwriters the Company Shares and each of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, agree to sell to the several Underwriters the number of Stockholder the Firm Shares set forth on Schedule B opposite the name of such each Selling Stockholder on Schedule III attached heretoStockholder, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, at the price per share of $_______, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate that number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth A opposite the its name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all the Underwriters hereunder, plus any additional number of Firm Shares which that such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 11 hereof. In As of the event Closing Date, certificates in negotiable form for the total number of Shares to be sold hereunder by the Selling Stockholders will have been placed in custody with the Custodian pursuant to the Custody Agreements executed by the Selling Stockholders for delivery of all Shares to be sold hereunder by the Selling Stockholders. The Selling Stockholders specifically agree that the Shares represented by the certificates held and to be held in custody for the extent that Selling Stockholders under the Underwriters shall exercise Custody Agreements are subject to the election to purchase Additional Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the Underwriters, and each interests of the Underwriters agreeshereunder, severally and that the obligations of the Selling Stockholders hereunder shall not jointlybe terminable by any act or deed of such Selling Stockholders (or by any other person, to purchase from firm or corporation including the Company, at the purchase price per share Custodian or the Underwriters) or by operation of law (including without limitation, the bankruptcy, insolvency, dissolution, liquidation or termination of the Selling Stockholders) or by the occurrence of any other event or events, except as set forth above in this Section 3(a)the Custody Agreements. If any such event should occur prior to the delivery to the Underwriters of the Shares hereunder, that number of Additional certificates for the Shares as determined shall be delivered by the Custodian in accordance with paragraph 3(c) belowthe terms and conditions of this Agreement as if such event has not occurred, plus any additional number regardless of Shares which whether or not the Custodian shall have received notice of such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereofevent.
(b) Consummation In addition, on the basis of the representations, warranties, covenants and agreements herein contained and upon not less than two business days' notice from the Representatives of the Underwriters, for a period of thirty days from the effective date of this Agreement, the Company grants to the Underwriters an option to purchase up to 225,000 Option Shares. Such option is granted solely for the purpose of covering over-allotments in the sale of Firm Shares and is exercisable as provided in Section 4 hereof. Option Shares shall be purchased severally for the account of the Underwriters in proportion to the number of Firm Shares set forth opposite the name of such Underwriters in Schedule A hereto. The time and date of delivery of any of the Option Shares is herein called the "Option Closing Date". The respective purchase obligations of each Underwriter with respect to the Option Shares may be adjusted by the Representatives so that no Underwriter shall be obligated to purchase Option Shares other than in 100 share increments. The price of both the Firm Shares and any Option Shares shall be $_____ per share.
(c) Payment of the purchase price for, and delivery of certificates for, the Firm Shares by and the Underwriters Option Shares shall be made on each of the Closing Date and the Option Closing Date, respectively, by wire transfer of immediately available funds, payable to the order of the Company and the Custodian, as applicable, at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇Tuck▇▇ ▇▇▇▇▇▇, ▇ ▇▇ One ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, or ▇▇ at such other location place as may shall be mutually acceptable to agreed upon by the Representatives, the Attorneys-in-Fact Company and the Company; providedSelling Stockholders or, howeverif mutually agreed to by the Company and the Representatives, that by wire transfer, upon delivery of certificates (in form and substance satisfactory to the certificate, evidencing Representatives) representing such securities to the Representatives. Delivery and payment for the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, a.m. (Eastern Time) on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares)offering, or at such other time not later than 15 business days after such and date as shall be agreed upon by the Representatives and the Company (such Company. The time and date of payment for and delivery being of the Firm Shares is herein called the "CLOSING DATE"). Payment Closing Date." In the event that any or all of the Option Shares are purchased by the Underwriters, the date and time at which certificates for Option Shares are to be delivered shall be made determined by the Representatives and the Company but shall not be earlier than three nor later than ten full business days after the exercise of such option, nor in any event prior to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by themClosing Date. Certificates for the Firm Shares and the Option Shares, if any, shall be in definitive, fully registered form, shall bear no restrictive legends and shall be in such denominations and registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full (2) business days prior to the Closing Date or the Option Closing Date, as applicable. The Company certificates for the Firm Shares and the Selling Stockholders will permit Option Shares, if any, shall be made available to the Representatives to examine at such office or such other place as the Representatives may designate for inspection and package such certificates for delivery at DTC at least one full packaging not later than 9:30 a.m. (Eastern Time) on the last business day prior to the Closing Date or the Option Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the Underwritersapplicable.
Appears in 1 contract
Sources: Underwriting Agreement (Spire Corp)
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but subject to the terms and conditions herein set forth, (A) the Company agrees to sell to the several Underwriters the Company Shares each Underwriter and each of the Selling Stockholders selling Stockholder Shares agreesUnderwriter, severally and not jointly, agrees to sell to purchase from the several Underwriters Company, at a purchase price of $_____ per Share, the number of Stockholder Firm Shares set forth opposite the name of such Underwriter in Column (1) of Schedule I hereto and (B) each Selling Stockholder on Schedule III attached heretoStockholder, severally and not jointly, agrees to sell to each Underwriter, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the such Selling StockholdersStockholder, at the same purchase price per share of $_______Share, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares equal to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Column (2) of Schedule I hereto I, multiplied by the number of Firm Shares set forth opposite the name of such Selling Stockholder in Column (1) of Schedule II and divided by the denominator of which is the aggregate total number of Firm Shares to be purchased sold by all Selling Stockholders, in each case subject to such adjustments to eliminate any fractional shares as the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters Representative in its sole discretion shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth above in this Section 3(a), that number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereofmake.
(b) Consummation Certificates in negotiable form (endorsed in blank or accompanied by stock powers in blank, with signatures appropriately guaranteed, and any funds necessary for the purchase of stock transfer stamps) representing all of the Shares to be sold by the Selling Stockholders have been placed in custody under a Custody Agreement and each Selling Stockholder has duly executed and delivered a Power of Attorney appointing ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇ and each of them as such Selling Stockholder's attorney-in-fact (the "Attorney-in-Fact") with authority to execute this Agreement and to deliver this Agreement on behalf of such Selling Stockholder, to authorize the delivery of the Shares to be sold by such Selling Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder in connection with the transactions contemplated by this Agreement and the Custody Agreement. Each Selling Stockholder agrees that the shares represented by the certificates held in custody for such Selling Stockholder under the Custody Agreement are subject to the interests of the Underwriters hereunder and the arrangements made by such Selling Stockholder for such custody, as well as the appointment by such Selling Stockholder of the Attorney-in-Fact, are, to that extent, irrevocable. Each Selling Stockholder specifically agrees that the obligations of such Selling Stockholder hereunder shall not be terminated, except as otherwise provided herein, by any act of such Selling Stockholder, operation of law or otherwise, whether by the death or incapacity of such Selling Stockholder, if an individual, or by the occurrence of any other event. If any Selling Stockholder, if an individual, should die or become incapacitated, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the shares held in custody for such Selling Stockholder shall be delivered pursuant to the terms and conditions of this Agreement and the Custody Agreement, and the actions taken by the Attorney-in-Fact pursuant to the Power of Attorney shall be as valid as if such death, incapacity or other event had not occurred, whether or not the Custodian or the Attorneys-in-Fact shall have received notice of such death, incapacity or other event.
(c) Delivery of certificates, and payment of the purchase of price, for the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ Securities Corp. at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇ ▇▇▇▇▇, or such other location as may shall be mutually acceptable to agreed upon by the Representatives, the Attorneys-in-Fact Company and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New YorkRepresentative. Such delivery and payment shall be made at 10:00 a.m., New York City time, on the third July __, 2000 or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or at such other time and date not later more than 15 five business days after such date thereafter as shall be agreed upon by the Representatives Representative and the Company (such Company. The time and date of such delivery and payment and delivery being are herein called the "CLOSING DATEClosing Date."). Payment
(d) Delivery of the certificates for the Firm Shares shall be made to the Company and the custodian Representative for the Selling Stockholders respective accounts of the several Underwriters against payment by certified or official bank checks or wire transfers the several Underwriters through the Representative of federal funds or similar the purchase price for the Firm Shares in same day funds payable drawn to the order of the Company in the case of Firm Shares sold by it and the custodian for Custodian in the case of Firm Shares sold by the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of . The certificates for the Firm Shares to be purchased by them. Certificates for the Shares shall so delivered will be in definitive, fully registered form, will bear no restrictive legends and will be in denominations and registered in such name or names and in such authorized denominations as the Representatives may request in writing at least Representative shall request, not less than two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery the Firm Shares will be made available to the Representative at DTC at least one full such office or such other place as the Representative may designate for inspection, checking and packaging not later than 9:30 a.m., New York time on the business day prior to the Closing Date.
(ce) In additionThe Company hereby sells to the Representative, for consideration of $110 in the aggregate, Warrants (the "Warrants") to purchase 110,000 shares of Common Stock (the "Warrant Shares") at a price per share equal to 140% of the public offering price. On the Closing Date, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on shall issue one occasion onlyor more Warrants, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised such denominations and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives Representative may request request, in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be form attached hereto as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the Underwriters.Exhibit A.
Appears in 1 contract
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warrantieswarranties and covenants contained herein, covenants and agreements subject to the conditions set forth herein, the Forward Seller agrees to sell to the several Underwriters and each Underwriter agrees, severally and not jointly, to purchase from the Forward Seller (including the issuance and sale by the Company of Common Stock to the Underwriters pursuant to Section 13(a) hereof), at the price per share set forth on Schedule II hereto, the number of Borrowed Shares set forth opposite the name of each Underwriter in Schedule I hereof, subject to adjustments in accordance with Section 10 hereof.
(b) If the Company does not meet all of the conditions to effectiveness set forth in the Forward Agreement on or prior to the Closing Date, the Forward Seller, individually, in its sole judgment, may elect not to borrow and deliver for sale the Borrowed Shares. In addition, in the event that, in the sole judgment of the Forward Seller, it is unable to borrow and deliver for sale under this Agreement all of the Borrowed Shares or if, in the Forward Seller's sole judgment, it would entail a stock loan cost in excess of a rate equal to 75 basis points per annum, then the Forward Seller shall only be required to deliver for sale the aggregate number of shares of Common Stock that such Forward Seller is able to so borrow at such cost.
(c) If, pursuant to Section 3(b), the Forward Seller elects not to borrow and deliver for sale the Borrowed Shares, the Forward Seller will use its reasonable best efforts to notify the Company no later than the Closing Date.
(d) Payment for the Borrowed Shares to be sold hereunder is to be made in Federal (same day) funds to an account designated by the Forward Seller against delivery of certificates therefor to the Representative for the several accounts of the Underwriters. Such payment and delivery are to be made through the facilities of the Depository Trust Company at approximately 10:00 a.m., New York time, on the third business day after the date of this Agreement or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein containedreferred to as the "Closing Date." (As used herein, but "business day" means a day on which the NYSE is open for trading and on which banks in New York are open for business and not permitted by law or executive order to be closed.)
(e) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell Forward Seller hereby grants an option to the several Underwriters the Company Shares and each of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, Option Shares at the price per share as set forth in paragraph (a) of $_______this Section. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as the Representative of the several Underwriters, to the Forward Seller setting forth the number of Option Shares as to which the several Underwriters are exercising the option, the aggregate names and denominations in which the Option Shares are to be registered and the time and date at which such certificates are to be delivered. The time and date at which certificates for Option Shares are to be delivered shall be determined by the Representative but shall not be earlier than three nor later than ten full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the "Option Closing Date"). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the Closing Date as the Option Closing Date. The number of Option Shares to be purchased by each Underwriter shall be in the same proportion to the total number of Option Shares being purchased as the number of Borrowed Shares being purchased by such Underwriter bears to the total number of Borrowed Shares, adjusted by you, as the Representative of the several Underwriters, in such manner as to avoid fractional shares. The option with respect to the Option Shares granted hereunder may be exercised only to cover over-allotments in the sale of the Borrowed Shares by the Underwriters. You, as the Representative of the several Underwriters, may cancel such option at any time prior to its expiration by giving written notice of such cancellation to the Forward Seller. To the extent, if any, that the option is exercised, payment for the Option Shares shall be made on the Option Closing Date in Federal (same day) funds drawn to the order of the Company or the Forward Seller against delivery of certificates therefor through the facilities of the Depository Trust Company, New York, New York.
(f) The Forward Seller shall deliver, or cause to be delivered, a credit representing the Borrowed Shares (and any shares of Common Stock issued and sold by the Company to the Underwriters pursuant to Section 13(a)) to an account or Stockholder Sharesaccounts at The Depository Trust Company, as designated by the Representative for the accounts of the several Underwriters at the Closing Date, against the irrevocable release of a wire transfer of immediately available funds for the amount of the purchase price therefor. The Forward Seller shall also deliver, or cause to be delivered a credit representing the Option Shares that the Underwriters have agreed to purchase at the Closing Date (or the Option Closing Date, as the case may be (to be adjusted by the Representatives to avoid fractional sharesbe), determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, an account or accounts at the purchase price per share set forth above in this Section 3(a), that number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Consummation of the purchase of the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") as designated by the Representative for the accounts of the several Underwriters, at its offices in New Yorkthe Closing Date or the Option Closing Date, New Yorkas the case may be, against the irrevocable release of a wire transfer of immediately available funds for the amount of the purchase price therefor. Such delivery and payment Time shall be made of the essence, and delivery at 10:00 a.m.the time and place specified in this Agreement is a further condition to the obligations of the Underwriters.
(g) Not later than 12:00 noon, New York time, on the third or fourth second business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice Shares are released by the Representatives Underwriters for sale to the Company. Such notice public, the Company shall set forth the aggregate number of Additional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are deliver or cause to be delivered (such date and time being herein sometimes referred to as copies of the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered Prospectus in such name or names quantities and in at such authorized denominations places as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the Underwritersrequest.
Appears in 1 contract
Sources: Equity Underwriting Agreement (Wintrust Financial Corp)
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but subject to the terms and conditions herein set forth, (A) the Company agrees to sell to the several Underwriters the Company Shares and each of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, Underwriter and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, at the a purchase price per share of $___________ per Share, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Column (1) of Schedule I hereto and (B) each Selling Stockholder, severally and not ---------- jointly, agrees to sell to each Underwriter, and each Underwriter, severally and not jointly, agrees to purchase from such Selling Stockholder at a purchase price of $______ per Share, the denominator number of which is Firm Shares equal to the aggregate number of Firm Shares set forth opposite the name of such Underwriter in Column (2) of Schedule I, multiplied by the number of Firm Shares set forth opposite the name ---------- of such Selling Stockholder in Column (1) of Schedule II and divided by the ----------- total number of Firm Shares to be purchased sold by all Selling Stockholders, in each case subject to such adjustments to eliminate any fractional shares as the Representatives in their sole discretion shall make. Certificates in negotiable form (endorsed in blank or accompanied by stock powers in blank, with signatures appropriately guaranteed, and any funds necessary for the purchase of stock transfer stamps) representing all of the Shares to be sold by the Selling Stockholders have been placed in custody under a Custody Agreement and each Selling Stockholder has duly executed and delivered a Power of Attorney appointing [_______________] and [____________________] and each of them as such Selling Stockholder's attorney-in-fact (the "Attorney-in- Fact") with authority to execute this Agreement and to deliver this Agreement on behalf of such Selling Stockholder, to authorize the delivery of the Shares to be sold by such Selling Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder in connection with the transactions contemplated by this Agreement and the Custody Agreement. Each Selling Stockholder agrees that the shares represented by the certificates held in custody for such Selling Stockholder under the Custody Agreement are subject to the interests of the Underwriters hereunder and the arrangements made by such Selling Stockholder for such custody, as well as the appointment by such Selling Stockholder of the Attorney-in-Fact, are, to that extent, irrevocable. Each Selling Stockholder specifically agrees that the obligations of such Selling Stockholder hereunder shall not be terminated, except as otherwise provided herein, by any act of such Selling Stockholder, operation of law or otherwise, whether by the death or incapacity of such Selling Stockholder, if an individual, or by the occurrence of any other event. If any Selling Stockholder, if an individual, should die or become incapacitated, or if any other such event should occur, before the delivery of the Shares hereunder, plus any additional number of Shares which certificates representing the shares held in custody for such Underwriter may become obligated to purchase Selling Stockholder shall be delivered pursuant to the provisions terms and conditions of Section 10 hereof. In this Agreement and the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the UnderwritersCustody Agreement, and each of the Underwriters agrees, severally and not jointly, to purchase from actions taken by the Company, at the purchase price per share set forth above in this Section 3(a), that number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase Attorney-in-Fact pursuant to the provisions Power of Section 10 hereof.
(b) Consummation Attorney shall be as valid as if such death, incapacity or other event had not occurred, whether or not the Custodian or the Attorneys-in-Fact shall have received notice of such death, incapacity or other event. Delivery of certificates, and payment of the purchase of price, for the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇ LLC at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇ ▇▇▇▇▇, or such other location as may shall be mutually acceptable to agreed upon by the Company and the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York City time, on the third __________, 1997 or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or at such other time and date not later more than 15 ten business days after such date thereafter as shall be agreed upon by the Representatives and the Company (such Company. The time and date of such delivery and payment and delivery being are herein called the "CLOSING DATE"). Payment Closing Date." Delivery of the certificates for the Firm Shares shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price for the Firm Shares by certified or official bank checks in New York Clearing House (next day) funds drawn to the order of the Company in the case of Firm Shares sold by it and the Custodian in the case of Firm Shares sold by the Selling Stockholders. The certificates for the Firm Shares to be purchased by them. Certificates for the Shares shall so delivered will be in definitive, fully registered form, will bear no restrictive legends and will be in denominations and registered in such name or names and in such authorized denominations as the Representatives may request in writing at least shall request, not less than two full business days prior to the Closing Date. The Company and certificates for the Selling Stockholders Firm Shares will permit be made available to the Representatives to examine at such office or such other place as the Representatives may designate for inspection, checking and package such certificates for delivery at DTC at least one full packaging not later than 9:30 a.m., New York time on the business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the Underwriters.
Appears in 1 contract
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but and subject to the terms and conditions herein set forth, the Company agrees to sell to the several Underwriters the Company Shares issue and each of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, at the price per share of $_______, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agreesagree, severally and not jointly, to purchase from in the Company, at the purchase price per share percentages set forth above in this Section 3(a)Schedule B hereto, that number all of Additional the Excess Unsubscribed Shares as determined in accordance with paragraph 3(c) below, plus and any additional number of Other Purchasers Standby Shares which such Underwriter may become obligated to purchase not purchased by the Other Purchasers pursuant to the provisions Other Purchasers Standby Purchase Agreements at a price of Section 10 hereof$5.00 per share.
(b) Consummation In addition, on the basis of the representations, warranties, covenants and agreements herein contained and upon not less than two business days' notice from the Underwriters, for a period of 20 days after the Expiration Date, each Selling Stockholder agrees to sell to the Underwriters all or part of up to the number of shares of Common Stock set forth beside such Selling Stockholder's name on Schedule C (an aggregate of 650,000 Option Shares) at a purchase price of $5.00 per share for the sole purpose of covering over-allotments that may be made in connection with the offering and distribution of the Firm shares of Common Stock. The Underwriters may exercise their option to purchase all or any portion of the Option Shares from the Company up to two times, provided that the aggregate number of Option Shares purchased by the Underwriters shall not exceed 650,000. Delivery of the Option Shares shall be made concurrently with payment therefor. Option Shares may be purchased by the Underwriters only for the purpose of covering over-allotments that may be made in connection with the offering and distribution of the shares of Common Stock. No Option Shares shall be delivered unless the Excess Unsubscribed Shares (if any are purchased by the Underwriters) shall be simultaneously delivered or shall theretofore have been delivered as herein provided.
(c) Payment of the respective aggregate purchase prices of the Excess Unsubscribed Shares purchased from the Company shall be made by the Underwriters on the Closing Date by wire transfer payable to or upon the order of the Company at the offices of ▇▇▇▇▇▇ and ▇. ▇▇▇▇▇ & Co. Incorporated at ▇▇▇ ▇. ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇-▇▇▇▇, or at such other location place as may shall be mutually acceptableagreed upon by the Underwriters and the Company, upon delivery of certificates (in form and substance satisfactory to the certificates for Underwriters) representing the Additional Excess Unsubscribed Shares to the Representatives Underwriters. Delivery and payment for the respective accounts Excess Unsubscribed Shares shall be made at the Closing. In addition, in the event that any or all of the Option Shares are purchased by the Underwriters., payment of the purchase price for, and delivery of certificates for, such Option Shares shall be made at the above mentioned office or at such other place as shall be agreed upon by the Underwriters and the Company, on each Option Closing Date as specified in the notice from the Underwriters to the Company. Certificates for the Excess Unsubscribed Shares and the Option Shares, if any, shall be in definitive, fully registered form, shall bear no restrictive legends and shall be in such denominations and registered in such names as the Underwriters may request in writing at least two business days prior to the Closing Date or the relevant Option Closing Date, as the case may
Appears in 1 contract
Sources: Standby Underwriting Agreement (Who Vision Systems Inc /Fl)
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but subject Subject to the terms and conditions herein set forth, the Company agrees to sell to the several Underwriters the Company Shares and (a) each of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, to sell to each of the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached heretoUnderwriters, and each Underwriterof the Underwriters agrees, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, at the a purchase price per share of $_______36.67, the aggregate number of Company Firm Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives you so as to avoid eliminate fractional shares), ) determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling StockholdersStockholder, as set forth opposite their respective names in on Schedule III heretoI(b), by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I I(a) hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all of the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to from the provisions of Section 10 hereof. In Selling Stockholders hereunder and (b) in the event and to the extent that the Underwriters shall exercise the election to purchase Additional Optional Shares as provided in paragraph 3(c) below, the Company each Selling Stockholder, severally and not jointly, agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the CompanySelling Stockholders, at the per share purchase price per share set forth above in this Section 3(a)above, that portion of the number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Consummation of the purchase of the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Optional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option election shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives you so as to eliminate fractional shares) shall be determined by multiplying the aggregate such number of Additional Optional Shares to be sold by the Company by a fraction, fraction the numerator of which is the maximum number of Firm Optional Shares to be purchased by which such Underwriter pursuant is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I I(a) hereto and the denominator of which is the maximum number of Firm Optional Shares which that all of the Underwriters are entitled to purchase pursuant hereunder.
(b) Each Selling Stockholder, severally and not jointly, hereby grants to Schedule I. The the Underwriters the right to purchase at their election up to the number of Additional Optional Shares to be purchased by each Underwriter if forth opposite their respective names on Schedule I(b), at the option is exercised in full is per share purchase price set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment in clause (a) above, for the Additional Shares shall be made by certified or official bank check, or wiring sole purpose of federal funds or similar same day funds, payable to the order covering sales of shares in excess of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the Underwriters.number of
Appears in 1 contract
Sources: Underwriting Agreement (Transatlantic Holdings Inc)
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but subject Subject to the terms and conditions herein set forth, (i) the Company Selling Stockholder agrees to sell to each of the several Underwriters the Company Shares Underwriters, and each of the Selling Stockholders selling Stockholder Shares Underwriters agrees, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling StockholdersStockholder, at the a purchase price per share of $_______52.149625, the aggregate number of Company Shares or Stockholder Firm Shares, as excluding the case may be Repurchase Shares (to be adjusted by the Representatives you so as to avoid eliminate fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling StockholdersStockholder, as set forth opposite their respective names in on Schedule III heretoI(b), by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I I(a) hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all of the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to from the provisions of Section 10 hereof. In Selling Stockholder hereunder and (ii) in the event and to the extent that the Underwriters shall exercise the election to purchase Additional Optional Shares as provided in paragraph 3(c) below, the Company Selling Stockholder agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the CompanySelling Stockholder, at the per share purchase price per share set forth above in this Section 3(a)above, that portion of the number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Consummation of the purchase of the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Optional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option election shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives you so as to eliminate fractional shares) shall be determined by multiplying the aggregate such number of Additional Optional Shares to be sold by the Company by a fraction, fraction the numerator of which is the maximum number of Firm Optional Shares to be purchased by which such Underwriter pursuant is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I I(a) hereto and the denominator of which is the maximum number of Firm Optional Shares which that all of the Underwriters are entitled to purchase pursuant hereunder.
(b) Subject to Schedule I. the terms and conditions set forth in the Stock Offering Agreement, (i) the Selling Stockholder agrees to sell to each of the Representatives, and each of the Representatives agrees, severally and not jointly, to purchase the Repurchase Shares from the Selling Stockholder, at a purchase price per share of $53.35, which price per share shall be equal to the public offering price set forth on the front cover of the Final Prospectus, and (ii) the Company agrees to purchase from the Representatives the Repurchase Shares at a purchase price equal to the public offering price per share set forth on the front cover of the Final Prospectus.
(c) The Selling Stockholder hereby grants to the Underwriters the right to purchase at their election up to the number of Additional Optional Shares set forth on Schedule I(b), at the per share purchase price set forth in clause (a) above, for the sole purpose of covering sales of shares in excess of the number of Firm Shares. Any such election to purchase Optional Shares may be exercised only by written notice from you in accordance with Section 11 hereof, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of Optional Shares to be purchased and the date on which such Optional Shares are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in clause (e) hereof) or, unless you otherwise agree in writing, earlier than two or later than ten business days after the date of such notice, subject to the terms and conditions and in reliance upon the representations and warranties herein set forth.
(d) Upon the authorization by you of the release of the Firm Shares, the several Underwriters propose to offer for sale to the public and to the Company their respective portions of Firm Shares upon the terms and conditions set forth in the Prospectus.
(e) The Shares to be purchased by each Underwriter if hereunder, in definitive form, and in such authorized denominations and registered in such names as the option is exercised in full is set forth opposite Representatives may request upon at least forty-eight hours' prior notice to the name Selling Stockholder shall be delivered by or on behalf of the Selling Stockholder to the Representatives, through the facilities of DTC, for the account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by the Selling Stockholder to the Representatives at least forty-eight hours in advance. As to any Shares that are in certificated form the Company will cause the certificates representing such certificated Shares to be made available for checking and packaging at least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the office of DTC or its designated custodian (the "DESIGNATED OFFICE"). The time and date of such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York time, on Schedule I attached heretoMarch 15, 2010 or such other time and date as the Representatives and the Selling Stockholder may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date specified by the Representatives in the written notice given by the Representatives of the Underwriters' election to purchase such Optional Shares, or such other time and date as the Representatives and the Selling Stockholder may agree upon in writing. Payment Such time and date for delivery of the Firm Shares is herein called the "FIRST TIME OF DELIVERY", such time and date for delivery of the Optional Shares, if not the First Time of Delivery, is herein called the "SECOND TIME OF DELIVERY", and each such time and date for delivery is herein called a "TIME OF DELIVERY".
(f) Delivery of the documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 7 hereof and payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices office of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇ (or such other location place as may be mutually acceptableagreed to by the Underwriters and the Company) at, upon delivery of the certificates for the Additional Shares with respect to the Firm Shares, 9:30 a.m. (New York time) on March 15, 2010, which date and time may be postponed by agreement between the Underwriters, the Company and the Selling Stockholder and with respect to the Option Shares, 9:30 a.m. (New York time) on the date specified in the written notice given by the Representatives for the respective accounts of the Underwriters' election to purchase such Optional Shares, which date and time may be postponed by agreement between the Underwriters and the Company.
(g) Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligations of the Underwriters hereunder.
Appears in 1 contract
Sources: Underwriting Agreement (American International Group Inc)
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but subject Subject to the terms and conditions herein set forth, the Company agrees to sell to the several Underwriters the Company Shares and (a) each of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, to sell to each of the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached heretoUnderwriters, and each Underwriterof the Underwriters agrees, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, at the a purchase price per share of $_______38.00, the aggregate number of Company Firm Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives you so as to avoid eliminate fractional shares), ) determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling StockholdersStockholder, as set forth opposite their respective names in on Schedule III heretoI(b), by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I I(a) hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all of the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to from the provisions of Section 10 hereof. In Selling Stockholders hereunder and (b) in the event and to the extent that the Underwriters shall exercise the election to purchase Additional Optional Shares as provided in paragraph 3(c) below, the Company each Selling Stockholder, severally and not jointly, agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the CompanySelling Stockholders, at the per share purchase price per share set forth above in this Section 3(a)above, that portion of the number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Consummation of the purchase of the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Optional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option election shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives you so as to eliminate fractional shares) shall be determined by multiplying the aggregate such number of Additional Optional Shares to be sold by the Company by a fraction, fraction the numerator of which is the maximum number of Firm Optional Shares to be purchased by which such Underwriter pursuant is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I I(a) hereto and the denominator of which is the maximum number of Firm Optional Shares which that all of the Underwriters are entitled to purchase pursuant hereunder.
(b) Each Selling Stockholder, severally and not jointly, hereby grants to Schedule I. The the Underwriters the right to purchase at their election up to the number of Additional Optional Shares to be purchased by each Underwriter if forth opposite their respective names on Schedule I(b), at the option is exercised in full is per share purchase price set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment in clause (a) above, for the Additional Shares shall be made by certified or official bank check, or wiring sole purpose of federal funds or similar same day funds, payable to the order covering sales of shares in excess of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the Underwriters.number of
Appears in 1 contract
Sources: Underwriting Agreement (American International Group Inc)
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants warranties and agreements set forth herein contained, but and subject to the terms and conditions herein set forthforth herein, the Company agrees to sell with respect to the several Underwriters the Company Shares and Borrowed Underwritten Shares, each of the Selling Stockholders selling Stockholder Shares agreesForward Sellers, severally and not jointly, agrees to sell to the several Underwriters the number of Stockholder Borrowed Underwritten Shares set forth opposite the such Forward Seller’s name of such Selling Stockholder on Schedule III attached B hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, at the price per share of $_______, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the CompanyForward Sellers the respective number of Shares set forth opposite such Underwriter’s name in Schedule A hereto, at a price per share (the “Purchase Price”) of $83.277. In addition, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, with respect to any Company Top-Up Underwritten Shares, the Company agrees to sell, at the Purchase Price, to the several Underwriters the aggregate number of Company Top-Up Underwritten Shares to be sold by the Company pursuant to Section 10 hereof, and each of the Underwriters agrees, severally and not jointly, to purchase price per share from the Company a number of Company Top-Up Underwritten Shares that bears the same ratio to the aggregate number of Company Top-Up Underwritten Shares to be sold by the Company pursuant to Section 10 hereof as the number set forth above opposite the name of such Underwriter in this Section 3(a), that Schedule A hereto bears to the aggregate number of Additional Underwritten Shares as determined being offered pursuant hereto.
b) On the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, the Underwriters shall have the option, solely for the purpose of covering overallotments made in accordance connection with paragraph 3(c) belowthe offering of the Underwritten Shares, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to clause (i) or clause (ii) below, as applicable, severally and not jointly, the provisions of Section 10 hereof.
(b) Consummation of the purchase of the Firm Option Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, Purchase Price less an amount per share equal to any dividends or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon distributions declared by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and payable on the custodian Underwritten Shares but not payable on the relevant Option Shares (assuming, for such determination, that such Option Shares were Company Option Shares) (the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date“Option Purchase Price”). The Company and Underwriters may exercise the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Option Shares at the same purchase price any time in whole, or from time to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or time in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by from the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Option Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, time when the certificates relating to the Additional Option Shares are to be delivered (such and paid for, which may be the same date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date or earlier later than the second (2nd) fifth full business day (as hereinafter defined) after the date on which the option shall have been exercised nor later than the eighth of such notice (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 11 hereof). Certificates for the Additional Shares Any such notice shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing given at least two full business days prior to the date and time of delivery specified therein. Following delivery of an option exercise notice:
(i) The Company may, in its sole discretion, within one business day after such notice is given, execute and deliver to (x) the JPM Forward Seller an additional letter agreement between the Company and the JPM Forward Purchaser (the “JPM Additional Forward Sale Agreement”) and (y) the Barclays Forward Seller an additional letter agreement between the Company and the Barclays Forward Purchaser (the “Barclays Additional Forward Sale Agreement” and, together with the JPM Additional Forward Sale Agreement, the “Additional Forward Sale Agreements”), in each case, substantially in the form attached hereto as Exhibit D, providing for the forward sale by the Company, subject to the Company’s right to elect Cash Settlement or Net Share Settlement (as such terms are defined in the Additional Forward Sale Agreements), of a number of shares of Common Stock that bears the same ratio to the aggregate number of Option Shares being purchased by the Underwriters from the Forward Sellers pursuant to the exercise of such option as the number set forth opposite the name of the Forward Seller related to such Forward Purchaser in Schedule B hereto bears to the aggregate number of Borrowed Underwritten Shares being offered pursuant hereto, subject, however, to such adjustments to eliminate any fractional Shares as the Representatives in their sole discretion shall make. Upon the Company’s execution and delivery to a Forward Seller of an Additional Forward Sale Agreement, the related Forward Purchaser shall promptly execute and deliver such Additional Forward Sale Agreement to the Company, and upon such execution and delivery to the Company, on the basis of the representations, warranties and agreements contained herein, and subject to the conditions stated herein, each Forward Seller (or, in the case of any Company Top-Up Option Shares, the Company), severally and not jointly, hereby agrees to sell to the several Underwriters a number of Option Shares equal to the number of shares of Common Stock underlying the Additional Forward Sale Agreements of the Forward Purchaser related to such Forward Seller at the applicable Option Purchase Price.
(ii) If the Company does not timely execute and deliver one or both Additional Forward Sale Agreements pursuant to clause (i) above, then on the basis of the representations, warranties and agreements contained in this Agreement, and subject to the terms and conditions stated herein, the Company hereby agrees to sell to the several Underwriters the aggregate number of Option Shares underlying the Additional Forward Sale Agreement(s) that were not so executed and delivered at the applicable Option Purchase Price. On each Additional Closing Date. The Company will permit , if any, each Underwriter agrees, severally and not jointly, on the Representatives to examine basis of the representations, warranties and package such certificates for delivery at DTC at least one full business day prior agreements set forth herein and subject to the Additional Closing Date. If conditions set forth herein, to purchase from the option is exercised in fullCompany or the Forward Sellers, as applicable, at the applicable Option Purchase Price, the number of Additional Option Shares that bears the same ratio to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Option Shares being purchased on such Additional Shares to be sold by the Company by a fraction, the numerator of which is Closing Date as the number of Firm Underwritten Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter in Schedule A hereto (or such number increased as set forth in Section 11 hereof) bears to the aggregate number of Underwritten Shares being purchased by the several Underwriters, subject, however, to such adjustments to eliminate any fractional Shares as the Representatives in their sole discretion shall make.
c) If (i) any of the representations and warranties of the Company contained in Section 1 hereof or any certificate delivered by the Company pursuant hereto are not true and correct as of the Closing Date as if made as of the Closing Date, (ii) the Company has not performed all of the obligations required to be performed by it under this Agreement on or prior to the Closing Date, (iii) any of the conditions set forth in Section 5 hereof have not been satisfied on or prior to the Closing Date, (iv) this Agreement shall have been terminated pursuant to Section 12 hereof on or prior to the Closing Date, or (v) the Company has not delivered to a Forward Purchaser an opinion of counsel with respect to matters set forth in Section 3(a) of the 2002 ISDA Master Agreement, as published by the International Swaps and Derivatives Association, Inc. (the “2002 ISDA Master Agreement”), on or prior to the Closing Date (clauses (i) through (v), together, the “Conditions”), the relevant Forward Seller, individually, in its sole discretion, may elect not to borrow and deliver for sale to the Underwriters the Borrowed Underwritten Shares deliverable by such Forward Seller hereunder. In addition, in the event that (x) a Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Underwritten Shares underlying the relevant Forward Sale Agreement, or (y) the related Forward Purchaser determines in good faith, in such Forward Purchaser’s commercially reasonable judgment, that it is either impracticable to do so or that the related Forward Seller would incur a stock loan fee, excluding the federal funds rate component payable by the relevant stock lender to such Forward Seller (the “Stock Loan Fee”) of more than a rate equal to 200 basis points per annum to do so, then, in each case, such Forward Seller shall only be required to deliver for sale to the Underwriters on the Closing Date the aggregate number of shares of Common Stock that such Forward Seller is able to so borrow at or below such Stock Loan Fee.
d) If the Company has entered into an Additional Forward Sale Agreement with a Forward Purchaser pursuant to Section 2(b)(i) hereof, and (i) any of the representations and warranties of the Company contained in Section 1 hereof or any certificate delivered pursuant hereto are not true and correct in all material respects as of the relevant Additional Closing Date, (ii) the Company has not performed all of the additional obligations required to be performed by it under this Agreement on or prior to the relevant Additional Closing Date, (iii) any of the conditions set forth in Section 5 hereof have not been satisfied on or prior to the relevant Additional Closing Date, (iv) this Agreement shall have been terminated pursuant to Section 12 hereof on or prior to the relevant Additional Closing Date, or (v) the Company has not delivered to such Forward Purchaser an opinion of counsel with respect to matters set forth in Section 3(a) of the 2002 ISDA Master Agreement, on or prior to the relevant Additional Closing Date (clauses (i) through (v), together, the “Additional Conditions”), then the relevant Forward Seller, individually, in its sole discretion, may elect not to borrow and deliver for sale to the Underwriters on the relevant Additional Closing Date the Borrowed Option Shares deliverable by such Forward Seller hereunder. In addition, in the event that (x) a Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Option Shares underlying the relevant Additional Forward Sale Agreement, or (y) the related Forward Purchaser determines in good faith, in such Forward Purchaser’s commercially reasonable judgment, that it is either impracticable to do so or that the related Forward Seller would incur a Stock Loan Fee of more than a rate equal to 200 basis points per annum to do so, then, in each case, such Forward Seller shall only be required to deliver for sale to the Underwriters on the relevant Additional Closing Date the aggregate number of shares of Common Stock that such Forward Seller is able to so borrow at or below such Stock Loan Fee.
e) If (i) a Forward Seller elects, pursuant to Section 2(c) hereof, not to borrow and deliver for sale to the Underwriters on the Closing Date the total number of Borrowed Underwritten Shares set forth opposite its name in Schedule I attached B hereto, or (ii) the Forward Purchaser related to such Forward Seller has entered into an Additional Forward Sale Agreement with the Company pursuant to Section 2(b)(i) hereof and such Forward Seller elects, pursuant to Section 2(d) hereof, not to borrow and deliver for sale to the Underwriters on the relevant Additional Closing Date the total number of Borrowed Option Shares underlying such Additional Forward Sale Agreement for such Additional Closing Date, such Forward Seller will use its commercially reasonable efforts to notify the Company of such election no later than 5:00 p.m., New York City time, on the business day prior to the Closing Date or such Additional Closing Date, as the case may be.
f) The Company understands that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any affiliate of an Underwriter.
g) Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal wire transfer in immediately available funds or similar same day funds, payable to the order of account specified to the Representatives by each Forward Seller (with respect to the Borrowed Shares) or the Company (with respect to any Company Shares) in connection with a closing at the offices of ▇O’Melveny & ▇▇▇▇▇ and ▇▇▇▇▇LLP at 10:00 A.M., LLPNew York City time, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇on June 12, ▇▇▇▇▇ ▇▇▇▇2013, ▇▇▇▇▇▇, ▇▇▇▇▇, or at such other time or place on the same or such other location date, not later than the fifth business day thereafter, as the Representatives, the Forward Sellers and the Company may be mutually acceptableagree upon in writing or, upon delivery in the case of any Option Shares, on the date and at the time and place specified by the Representatives in the written notice of the certificates Underwriters’ election to purchase such Option Shares. The time and date of such payment for the Underwritten Shares is referred to herein as the “Closing Date”, and the time and date for such payment for any Option Shares, if other than the Closing Date, is herein referred to as an “Additional Closing Date.”
h) Payment for the Shares to be purchased on the Closing Date or any Additional Closing Date, as the case may be, shall be made against delivery to the Representatives for the respective accounts of the Underwritersseveral Underwriters of the Shares to be purchased on such date or the relevant Additional Closing Date with any transfer taxes payable in connection with the sale of such Shares duly paid by the Company (with respect to any Company Shares). Delivery of the Shares shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct. The certificates for the Company Shares to be issued by the Company on the Closing Date or the relevant Additional Closing Date, as the case may be, will be made available for inspection and packaging by the Representatives at the office of DTC or its designated custodian not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date or the relevant Additional Closing Date, as the case may be.
Appears in 1 contract
Sources: Underwriting Agreement (Thermo Fisher Scientific Inc.)
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to sell to the several Underwriters the Company Shares and each of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached heretoUnderwriter, and each Underwriter, severally and not jointly, jointly agrees to purchase from the Company and each of the Selling StockholdersCompany, at the a price per share of equal to $_________ per share (that being the initial public offering price per Share minus an underwriting discount to the Underwriters of 9% per Share), the aggregate that number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth A opposite the name of such Underwriter Underwriter, subject to such adjustment as the Representatives in Schedule I hereto and the denominator their discretion shall make to eliminate any sales or purchases of which is the aggregate number of Firm Shares to be purchased by all the Underwriters hereunderfractional shares, plus any additional number numbers of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 11 hereof. .
(b) In addition, on the event basis of the representations, warranties, covenants and agreements, herein contained, but subject to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) belowterms and conditions herein set forth, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, are hereby granted an option to purchase all or any part of the Option Shares at a price equal to $________ per share (that being the initial public offering price per Share minus and underwriting discount to the Underwriters of 9% per Share). The option granted hereby will expire 45 days after (i) the date the Registration Statement becomes effective, if the Company has elected not to rely on Rule 430A under the Regulations, or (ii) the date of this Agreement if the Company has elected to rely upon Rule 430A under the Regulations, and may be exercised in whole or in part from time to time (but not on more than two (2) occasions) only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Shares upon notice by the Representatives to counsel for the Company (at the address for copies of notices as set forth in Section 13 below), setting forth the number of Option Shares as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for any such Option Shares. Any such time and date of delivery (an "Option Closing Date") shall be determined by the Representatives, but shall not be sooner than three (3) business days, nor later than five (5) business days, after the exercise of said option, nor in any event prior to the Closing Date, as hereinafter defined, unless otherwise agreed upon by the Representatives and the Company. Notwithstanding the foregoing, the Underwriters shall purchase the first 30,000 Option Shares from Jose▇▇ ▇▇▇▇▇, ▇▇ existing shareholder of the Company, at and Cayre, by signing this Agreement, hereby grants the Underwriters option to purchase such shares on the same terms as described above. Nothing herein contained shall obligate the Underwriters to exercise the over-allotment option described above. No Option Shares shall be delivered unless the Shares shall be simultaneously delivered or shall theretofore have been delivered as herein provided.
(c) Payment of the purchase price per share set forth above in this Section 3(a)for, that number and delivery of Additional certificates for, the Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Consummation of the purchase of the Firm Shares by the Underwriters shall be made at the offices of Hart▇▇, ▇▇▇▇▇▇▇ and & ▇mer▇ ▇▇▇ ("Representative's Counsel") at 700 ▇▇▇▇▇▇▇ ▇▇▇▇▇, LLP▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or at such other location place as may shall be mutually acceptable to agreed upon by the Representatives, the Attorneys-in-Fact Representatives and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., a.m. (New York time, ) on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares _, 1998, or at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such other time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares as shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the Underwriters.agreed upon
Appears in 1 contract
Sources: Underwriting Agreement (Team Communication Group Inc)
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representationscovenants, warranties, covenants representations and agreements warranties herein contained, but contained and subject to the terms and conditions herein set forth:
A. The Corporation hereby engages the Underwriter as its nonexclusive agent to solicit subscriptions for the Shares in accordance with the terms of the Registration Statement, the Company Prospectus and this agreement, and the Underwriter agrees to use its best efforts to procure such subscriptions. The foregoing notwithstanding, the Underwriter shall not be required to sell any specific number of the Shares and the Underwriter does not guaranty that it will be able to sell all or any of the Shares.
B. The Corporation may engage other persons to sell the Shares in the Offering, including but not limited to its own employees, as well as to retain the services of other broker-dealers. The Corporation agrees to provide the Underwriter with the names of other persons whom it has engaged to sell the Shares, the identity of other subscribers for the Shares and information regarding the amount of the subscriptions obtained from such persons.
C. The Underwriter may form a group of securities dealers ("Selected Placement Agents"), including the Underwriter, to procure subscribers for the Shares. Any agreement between the Underwriter and a securities broker-dealer pursuant to which such broker-dealer becomes a Selected Placement Agent shall require such broker-dealer to represent and warrant that it will conduct the solicitation of subscriptions in the manner set forth herein. The allocation of Shares among the Underwriter and the Selected Placement Agents shall be made by the Underwriter.
D. In consideration of the Underwriter's performance of its obligations hereunder, the Corporation agrees that the Underwriter shall receive selling commissions in an amount equal to 10% of the aggregate purchase price for the Shares received from subscribers introduced to the several Underwriters Corporation by the Company Shares and each Underwriter (or any Selected Placement Agent). A subscriber will be deemed introduced by the Underwriter if the Underwriter (or any Selected Placement Agent) was the first person to contact that subscriber to solicit that subscriber to purchase the Shares. Commissions payable in connection with the sale of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, to sell will be disbursed to the several Underwriters Underwriter upon the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, at the price per share of $_______, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted acceptance by the Representatives to avoid fractional shares), determined by multiplying the aggregate number Corporation of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such subscriptions for those sales. The Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided in paragraph 3(c) below, the Company agrees to sell pay to each of the Underwritersother Selected Placement Agents, if any, such amount at such times and each upon such terms and conditions as shall have been agreed upon between the Underwriter and such Selected Placement Agent, that portion of the Underwriters agrees, severally and not jointly, aggregate commissions to purchase from which such Selected Placement Agent is entitled. The Corporation also agrees to pay to the Company, at Underwriter a non-accountable expense allowance equal to 1.5% of the aggregate purchase price per share set forth above in this Section 3(afor the Shares received from subscribers introduced to the Corporation by the Underwriter (or any Selected Placement Agent), that number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such . The Underwriter may become obligated reallow all or any part of such expense allowance to purchase pursuant to the provisions of Section 10 hereofany other Selected Placement Agent.
(b) Consummation of E. Each subscriber for the purchase of Shares must tender payment in full for the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company subscribed for ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATESubscription Payment"). Payment The Underwriter shall be made to deliver Subscription Payments (less the Company and amount of the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds commission payable to the order Underwriter) received by the Underwriter to the Corporation by 12:00 noon on the business day following such receipt by the Underwriter, together with a schedule setting forth the amount of each such Subscription Payment and the name, mailing address and state of residence of the Company and subscriber. Concurrently with the custodian Underwriter's delivery of each Subscription Payment to the Corporation, the Underwriter shall forward to the Corporation executed originals of all related subscription documents, retaining copies of all such subscription documents for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full Underwriter's records.
F. Within five business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In additionfollowing receipt by it of each Subscription Payment, the Company, as and Corporation shall determine whether to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole accept or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, reject that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Datesubscription. If the option is exercised in fullCorporation elects to reject a subscription, the number related Subscription Payment shall promptly be returned without interest to the Underwriter, who shall in turn return the full amount of Additional Shares the rejected subscription to be sold by the Company subscriber. If the Corporation does not elect to reject a subscription within that period, that subscription shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the Underwritersdeemed accepted.
Appears in 1 contract
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but subject Subject to the terms and conditions herein set forth, the Company agrees to sell to the several Underwriters the Company Shares and (a) each of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, to sell to each of the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached heretoUnderwriters, and each Underwriterof the Underwriters agrees, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, at the a purchase price per share of $___.____, the aggregate number of Company Firm Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives you so as to avoid eliminate fractional shares), ) determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling StockholdersStockholder, as set forth opposite their respective names in on Schedule III heretoI(b), by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I I(a) hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all of the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to from the provisions of Section 10 hereof. In Selling Stockholders hereunder and (b) in the event and to the extent that the Underwriters shall exercise the election to purchase Additional Optional Shares as provided in paragraph 3(c) below, the Company each Selling Stockholder, severally and not jointly, agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the CompanySelling Stockholders, at the per share purchase price per share set forth above in this Section 3(a)above, that portion of the number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Consummation of the purchase of the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Optional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option election shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives you so as to eliminate fractional shares) shall be determined by multiplying the aggregate such number of Additional Optional Shares to be sold by the Company by a fraction, fraction the numerator of which is the maximum number of Firm Optional Shares to be purchased by which such Underwriter pursuant is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I I(a) hereto and the denominator of which is the maximum number of Firm Optional Shares which that all of the Underwriters are entitled to purchase pursuant hereunder.
(b) Each Selling Stockholder, severally and not jointly, hereby grants to Schedule I. The the Underwriters the right to purchase at their election up to the number of Additional Optional Shares to be purchased by each Underwriter if forth opposite their respective names on Schedule I(b), at the option is exercised in full is per share purchase price set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment in clause (a) above, for the Additional Shares shall be made by certified or official bank check, or wiring sole purpose of federal funds or similar same day funds, payable to the order covering sales of shares in excess of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the Underwriters.number of
Appears in 1 contract
Sources: Master Separation Agreement (American International Group Inc)
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but subject Subject to the terms and conditions herein set forth, (i) the Company Selling Stockholder agrees to sell to each of the several Underwriters the Company Shares Underwriters, and each of the Selling Stockholders selling Stockholder Shares Underwriters agrees, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling StockholdersStockholder, at the a purchase price per share of $_______52.149625, the aggregate number of Company Shares or Stockholder Firm Shares, as excluding the case may be Repurchase Shares (to be adjusted by the Representatives you so as to avoid eliminate fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of such Selling StockholdersStockholder, as set forth opposite their respective names in on Schedule III heretoI(b), by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I I(a) hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all of the Underwriters hereunder, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to from the provisions of Section 10 hereof. In Selling Stockholder hereunder and (ii) in the event and to the extent that the Underwriters shall exercise the election to purchase Additional Optional Shares as provided in paragraph 3(c) below, the Company Selling Stockholder agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the CompanySelling Stockholder, at the per share purchase price per share set forth above in this Section 3(a)above, that portion of the number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Consummation of the purchase of the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, by written notice by the Representatives to the Company. Such notice shall set forth the aggregate number of Additional Optional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representatives, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option election shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives you so as to eliminate fractional shares) shall be determined by multiplying the aggregate such number of Additional Optional Shares to be sold by the Company by a fraction, fraction the numerator of which is the maximum number of Firm Optional Shares to be purchased by which such Underwriter pursuant is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I I(a) hereto and the denominator of which is the maximum number of Firm Optional Shares which that all of the Underwriters are entitled to purchase pursuant hereunder.
(b) Subject to Schedule I. the terms and conditions set forth in the Stock Offering Agreement, (i) the Selling Stockholder agrees to sell to each of the Representatives, and each of the Representatives agrees, severally and not jointly, to purchase the Repurchase Shares from the Selling Stockholder, at a purchase price per share of $53.35, which price per share shall be equal to the public offering price set forth on the front cover of the Final Prospectus, and (ii) the Company agrees to purchase from the Representatives the Repurchase Shares at a purchase price equal to the public offering price per share set forth on the front cover of the Final Prospectus.
(c) The Selling Stockholder hereby grants to the Underwriters the right to purchase at their election up to the number of Additional Optional Shares set forth on Schedule I(b), at the per share purchase price set forth in clause (a) above, for the sole purpose of covering sales of shares in excess of the number of Firm Shares. Any such election to purchase Optional Shares may be exercised only by written notice from you in accordance with Section 11 hereof, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of Optional Shares to be purchased and the date on which such Optional Shares are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in clause (e) hereof) or, unless you otherwise agree in writing, earlier than two or later than ten business days after the date of such notice, subject to the terms and conditions and in reliance upon the representations and warranties herein set forth.
(d) Upon the authorization by you of the release of the Firm Shares, the several Underwriters propose to offer for sale to the public and to the Company their respective portions of Firm Shares upon the terms and conditions set forth in the Prospectus.
(e) The Shares to be purchased by each Underwriter if hereunder, in definitive form, and in such authorized denominations and registered in such names as the option is exercised in full is set forth opposite Representatives may request upon at least forty-eight hours’ prior notice to the name Selling Stockholder shall be delivered by or on behalf of the Selling Stockholder to the Representatives, through the facilities of DTC, for the account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by the Selling Stockholder to the Representatives at least forty-eight hours in advance. As to any Shares that are in certificated form the Company will cause the certificates representing such certificated Shares to be made available for checking and packaging at least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the office of DTC or its designated custodian (the “Designated Office”). The time and date of such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York time, on Schedule I attached heretoMarch 15, 2010 or such other time and date as the Representatives and the Selling Stockholder may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date specified by the Representatives in the written notice given by the Representatives of the Underwriters’ election to purchase such Optional Shares, or such other time and date as the Representatives and the Selling Stockholder may agree upon in writing. Payment Such time and date for delivery of the Firm Shares is herein called the “First Time of Delivery”, such time and date for delivery of the Optional Shares, if not the First Time of Delivery, is herein called the “Second Time of Delivery”, and each such time and date for delivery is herein called a “Time of Delivery”.
(f) Delivery of the documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 7 hereof and payment for the Additional Shares shall be made by certified or official bank check, or wiring of federal funds or similar same day funds, payable to the order of the Company at the offices office of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇ (or such other location place as may be mutually acceptableagreed to by the Underwriters and the Company) at, upon delivery of the certificates for the Additional Shares with respect to the Firm Shares, 9:30 a.m. (New York time) on March 15, 2010, which date and time may be postponed by agreement between the Underwriters, the Company and the Selling Stockholder and with respect to the Option Shares, 9:30 a.m. (New York time) on the date specified in the written notice given by the Representatives for the respective accounts of the Underwriters’ election to purchase such Optional Shares, which date and time may be postponed by agreement between the Underwriters and the Company.
(g) Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligations of the Underwriters hereunder.
Appears in 1 contract
Sources: Underwriting Agreement (Transatlantic Holdings Inc)
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, warranties and covenants and agreements herein contained, but and subject to the conditions herein set forth, the Sellers agree to sell to the Underwriters and each Underwriter agrees, severally and not jointly, to purchase, at a price of $ per share, the number of Firm Shares set forth opposite the name of each Underwriter in Schedule I hereof, subject to adjustments in accordance with Section 10. The number of Firm Shares to be purchased by each Underwriter from each Seller shall be as nearly as practicable in the same proportion to the total number of Firm Shares being sold by each Seller as the number of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares to be sold hereunder. The obligations of the Company and of each of the Selling Stockholders shall be several and not joint.
(b) Certificates in negotiable form for the total number of the Firm Shares to be sold hereunder by each of the Selling Stockholders have been placed in custody with the Custodian pursuant to such Selling Stockholder’s Custody Agreement, for delivery and sale hereunder. Each of the Selling Stockholders specifically agrees that the Firm Shares represented by the certificates held in custody for such Selling Stockholder under such Selling Stockholder’s Custody Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody are to that extent irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminable by any act or deed of such Selling Stockholder (or by any other individual or entity, including any other Selling Stockholder, the Company, the Custodian or the Underwriters) or by operation of law (including the death of a Selling Stockholder who is an individual or the dissolution of a Selling Stockholder that is an entity) or by the occurrence of any other event or events, except as set forth in the Custody Agreement. If any such event should occur prior to the delivery to the Underwriters of the Firm Shares hereunder, certificates for the Firm Shares shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event has not occurred. The Custodian is authorized by each of the Selling Stockholders to receive and acknowledge receipt of the proceeds of sale of the Firm Shares held by it against delivery of such Firm Shares.
(c) Payment for the Firm Shares to be sold hereunder is to be made in Federal (same day) funds to an account designated by the Company for the Firm Shares to be sold by it and to an account designated by the Custodian for the Firm Shares to be sold by the Selling Stockholders, in each case against delivery of certificates therefor to the Representatives for the several accounts of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust Company at 10:00 a.m., New York time, on the third business day after the date of this Agreement or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “Closing Date.” As used in this Agreement, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and not permitted by law or executive order to be closed.
(d) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell Selling Stockholders hereby grant an option to the several Underwriters the Company Shares and each of the Selling Stockholders selling Stockholder Shares agrees, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, and each Underwriter, severally and not jointly, agrees to purchase from the Company and each of the Selling Stockholders, Option Shares at the price per share set forth in Section 2(a). The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the Closing Date and (ii) at any one time thereafter within 30 days after the date of $_______this Agreement, by you, as Representatives of the aggregate several Underwriters, to the Company setting forth the number of Company Option Shares or Stockholder Shares, as to which the case may be (several Underwriters are exercising the option and the time and date at which such certificates are to be adjusted delivered. The time and date at which certificates for Option Shares are to be delivered shall be determined by the Representatives but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to avoid fractional sharesthe Closing Date (such time and date being herein referred to as the “Option Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, determined by multiplying the aggregate notice of exercise shall set the Closing Date as the Option Closing Date. The number of Firm Shares to be sold by the Company and each of such Selling Stockholders, as set forth opposite their respective names in Schedule III hereto, by a fraction, the numerator of which is the aggregate number of Firm Option Shares to be purchased by such each Underwriter shall be in the same proportion to the total number of Option Shares being purchased as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be being purchased by all such Underwriter bears to the Underwriters hereunder, plus any additional total number of Shares which Firm Shares, adjusted by you in such Underwriter may become obligated manner as to purchase pursuant avoid fractional shares. The option with respect to the provisions of Section 10 hereof. In the event and to the extent that the Underwriters shall exercise the election to purchase Additional Option Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth above in this Section 3(a), that number of Additional Shares as determined in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Consummation of the purchase of the Firm Shares by the Underwriters shall be made at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as granted hereunder may be mutually acceptable exercised only to the Representatives, the Attorneys-in-Fact and the Company; provided, however, that delivery of the certificate, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the effectiveness of the Registration Statement (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or such other time not later than 15 business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the "CLOSING DATE"). Payment shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. Certificates for the Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(c) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, hereby grants to the several Underwriters an option to purchase up to _________ Additional Shares at the same purchase price to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Shares as set forth in Section 3(a), for the sole purpose of covering cover over-allotments in the sale of the Firm Shares by the Underwriters. You, as Representatives of the several Underwriters. This , may cancel such option may be exercised on one occasion only, in whole or in part, at any time on or before the thirtieth (30th) calendar day following the date of the Prospectus, prior to its expiration by giving written notice by the Representatives of such cancellation to the Company. Such notice shall set forth To the aggregate number of Additional Shares as to which the option is being exercised and the date and timeextent, as reasonably determined by the Representativesif any, when the certificates relating to the Additional Shares are to be delivered (such date and time being herein sometimes referred to as the "ADDITIONAL CLOSING DATE"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) full business day after the date on which the option shall have been exercised, unless such time and date are postponed in accordance with the provisions of Section 10 hereof. Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the number of Additional Shares to be sold by the Company shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in partexercised, the number of Additional Shares to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on Schedule I attached hereto. Payment payment for the Additional Option Shares shall be made by certified or official bank check, or wiring of federal on the Option Closing Date in Federal (same-day) funds or similar same day funds, payable drawn to the order of the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptable, upon delivery of the certificates for the Additional Shares to the Representatives for the respective accounts of the UnderwritersSelling Stockholders.
Appears in 1 contract
Purchase, Sale and Delivery of the Shares. (a) On the basis of the representations, warranties, covenants and agreements herein contained, but subject to the terms and conditions herein set forth, (i) the Company agrees to sell to the several Underwriters and the Company Shares and each of the Selling Stockholders selling Stockholder Shares agreesUnderwriters, severally and not jointly, to sell to the several Underwriters the number of Stockholder Shares set forth opposite the name of such Selling Stockholder on Schedule III attached hereto, and each Underwriter, severally and not jointly, agrees agree to purchase from the Company and each of the Selling StockholdersCompany, at the a purchase price per share of $________ per share, the aggregate number of Company Shares or Stockholder Shares, as the case may be (to be adjusted by the Representatives to avoid fractional shares), determined by multiplying the aggregate number of Firm Shares to be sold by set forth opposite the Company respective names of the Underwriters in Column (1) of Schedule I hereto and each of such (ii) the Selling Stockholders, as set forth opposite their respective names in Schedule III heretoseverally and not jointly, by a fractionagree to sell to the several Underwriters and the Underwriters, severally and not jointly, agree to purchase from the numerator of which is Selling Stockholders, at $___ per share the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name respective names of such Underwriter the Underwriters in Column (2) of Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all the Underwriters hereunderhereto, in each case plus any additional number of Shares which such that the Underwriter may become obligated to purchase pursuant to the provisions of Section 10 9 hereof. In The number of Firm Shares to be sold by each Selling Stockholder to each Underwriter shall be the event and number which bears the same proportion to the extent that total number of Firm Shares to be sold by such Selling Stockholder, as specified in Schedule II hereto, as the Underwriters shall exercise the election to purchase Additional number of Firm Shares as provided in paragraph 3(c) below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth above opposite the name of such Underwriter in this Section 3(a), that Column (2) of Schedule I bears to the total number of Additional Firm Shares to be sold by the Selling Stockholders, subject to such adjustments to eliminate any fractional shares as determined you in accordance with paragraph 3(c) below, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereofyour sole discretion shall make.
(b) Consummation of Certificates in negotiable form for the purchase total number of the Firm Shares sold hereunder by each Selling Stockholder have been placed in escrow with [the Company] as Custodian pursuant to the Custodian Agreement executed by each Selling Stockholder for delivery of all Firm Shares to be sold hereunder by such Selling Stockholder. Each Selling Stockholder specifically agrees that the Firm Shares represented by the certificates held in custody for the Selling Stockholder under the Custodian Agreement are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Stockholder for such escrow are to that extent irrevocable, and that the obligations of the Selling Stockholder hereunder shall not be terminable by any act or deed of the Selling Stockholder (or by any other person, firm or corporation including the Company, the escrow agent or the Underwriters) or by operation of law (including the death of an individual Selling Stockholder or the dissolution of a corporate Selling Stockholder) or by the occurrence of any other event or events, except as set forth in the Custodian Agreement. If any such event should occur prior to the delivery to the Underwriters of the Firm Shares hereunder, certificates for the Firm Shares shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event had not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Shares held by it against delivery of such Shares.
(c) Payment of the purchase price for, and delivery of certificates for, the Firm Shares shall be made at the offices office of ▇▇▇▇▇▇ and & ▇▇▇▇▇▇ L.L.P., LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Center, ▇▇▇▇▇▇Dallas, ▇▇▇▇▇Texas, or such other location place as may shall be mutually acceptable to the Representatives, the Attorneys-in-Fact agreed upon by you and the Company; provided, howeverat 9:00 A.M., that delivery of the certificateDallas, evidencing the Firm Shares shall be made through The Depository Trust Company ("DTC") at its offices in New York, New York. Such delivery and payment shall be made at 10:00 a.m., New York Texas time, on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless such time and date are postponed in accordance with the provisions of Section 10 9 hereof) following the date of the effectiveness of the Registration Statement becomes effective (or, if the Company has elected to rely upon Rule 430A of the Regulations, the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act) after the determination of the initial public offering price of the Shares), or at such other time not later than 15 ten business days after such date as shall be agreed upon by you, the Representatives Selling Stockholders and the Company (such time and date of payment and delivery being herein called the "CLOSING DATEClosing Date"). Payment Delivery of the certificates for the Firm Shares shall be made to the Company and the custodian for the Selling Stockholders by certified or official bank checks or wire transfers of federal funds or similar same day funds payable to the order of the Company and the custodian for the Selling Stockholders, against delivery to the Representatives you for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of certificates the purchase price for the Firm Shares by wire transfer of federal (same day) funds, to be purchased the account(s) designated by them. the Company.
(d) Certificates for the Firm Shares shall be registered in such name or names and in such authorized denominations as the Representatives you may request in writing at least two full business days prior to the Closing Date. The Company and the Selling Stockholders will permit the Representatives you to examine and package such certificates for delivery at DTC at least one full business day prior to the Closing Date.
(ce) In addition, the Company, as and to the extent indicated on Schedule III attached hereto, Company hereby grants to the several Underwriters an the option to purchase up to _________ Additional Shares at the same purchase price per share to be paid by the several Underwriters to the Company and the Selling Stockholders for the Company Shares and the Stockholder Firm Shares as set forth in this Section 3(a)2, for the sole purpose of covering over-allotments in the sale of Firm Shares by the several Underwriters. This option may be exercised on one occasion only, at any time in whole or in part, at any time part on or before the thirtieth (30th) calendar day following the effective date of the ProspectusRegistration Statement, by written notice by the Representatives you to the CompanyCompany and the Custodian. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised and the date and time, as reasonably determined by the Representativesyou, when the certificates relating to the Additional Shares are to be delivered (each such date and time being herein sometimes referred to as the an "ADDITIONAL CLOSING DATEAdditional Closing Date"); provided, however, that the -------- ------- Additional Closing Date shall not be earlier than the Closing Date or earlier than the second (2nd) full business day after the date on which the option shall have been exercised nor later than the eighth (8th) tenth full business day after the date on which the option shall have been exercised, exercised (unless such time and date are postponed in accordance with the provisions of Section 10 9 hereof). Certificates for the Additional Shares shall be registered in such name or names and in such authorized denominations as the Representatives you may request in writing at least two full business days prior to the Additional Closing Date. The Company will permit the Representatives you to examine and package such certificates for delivery at DTC at least one full business day prior to the Additional Closing Date. If the option is exercised in full, the The number of Additional Shares to be sold by the Company to each Underwriter shall be as is set forth opposite its names on Schedule III attached hereto. In the event that the option is exercised in part, the number of Additional Shares which bears the same ratio to be sold by the Company shall be adjusted downward accordingly. The number of Additional Shares to be purchased from the Company by each Underwriter (as adjusted by the Representatives to eliminate fractional shares) shall be determined by multiplying the aggregate number of Additional Shares to be sold by the Company by a fraction, the numerator of which is being purchased as the number of Firm Shares to be purchased by such Underwriter pursuant to Schedule I and the denominator of which is the maximum number of Firm Shares which all of the Underwriters are entitled to purchase pursuant to Schedule I. The number of Additional Shares to be purchased by each Underwriter if the option is exercised in full is set forth opposite the name of such Underwriter on in Column (1) of Schedule I attached heretohereto (or such number increased as set forth in Section 9 hereof) bears to ________ [insert the total number of Firm Shares being purchased], subject, however, to such adjustments to eliminate any fractional shares as you in your sole discretion shall make. Payment for the Additional Shares shall be made by certified or official bank check, or wiring wire transfer of federal funds or similar (same day day) funds, payable to the order of account designated by the Company at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or such other location as may be mutually acceptableCustodian, upon delivery of the certificates for the Additional Shares to the Representatives you for the respective accounts of the UnderwritersUnderwriters at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ Center, Dallas, Texas, or such other place as shall be agreed upon by you and the Company.
(f) If on the Closing Date a Selling Stockholder fails to sell the Firm Shares that such Selling Stockholder has agreed to sell on such date as set forth in Schedule II hereto, the Company agrees that it will sell or arrange for the sale of the number of shares of Common Stock to the Underwriters that represents the Firm Shares which such Selling Stockholder has failed to so sell, as set forth in Schedule II hereto, or such lesser number as may be requested by the Representatives. In no event shall this Section be construed to excuse the Selling Stockholder from the full performance of its obligations under this Agreement.
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