Research Analyst Independence. The Company and the Selling Stockholder acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder hereby waive and release, to the fullest extent permitted by law, any claims that they may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company and the Selling Stockholder acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between the Company, the Selling Stockholder and the several Underwriters. Very truly yours, HEARTLAND EXPRESS, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).

Appears in 2 contracts

Samples: Underwriting Agreement (Crouse Lawrence D), Underwriting Agreement (Heartland Express Inc)

Appears in 2 contracts

Samples: Underwriting Agreement, Underwriting Agreement (Leap Therapeutics, Inc.)

Research Analyst Independence. The Company and the Selling ~~Stockholder~~ Shareholders acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. ~~The~~ Each of the Company and ~~the~~ Selling ~~Stockholder~~ Shareholders hereby ~~waive~~ waives and ~~release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and/or the Selling ~~Stockholder~~ Shareholders by any Underwriter’s investment banking division. The Company and the Selling ~~Stockholder acknowledge~~ Shareholders each acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the Company, the Selling ~~Stockholder~~ Shareholders and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS~~SmartFinancial, ~~INC~~Inc. /s/ Xxxxxxx X. Xxxxxxx, Xx. ~~/s/ Xxxx~~ Xxxxxxx X. ~~Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice~~ Xxxxxxx, Xx. President ~~of Finance~~ and Chief ~~Financial~~ Executive Officer ~~SELLING STOCKHOLDER~~Solely with respect to Sections 5.2, 6.2, 8 and 9 of this Agreement, the Selling Shareholders Named in Schedule II Hereto, Acting Severally By: ~~2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ /s/ ~~Xxxxxxxx~~ Xxxxxxx X. ~~Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee~~ Xxxxxxx, Xx. Attorney-in-Fact CONFIRMED as of the date first above mentioned, on behalf of the ~~Representatives~~ Representative and the other several Underwriters named in Schedule I hereto. ~~XXXXXX~~XXXXXXX XXXXX & ASSOCIATES, ~~XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. By: /s/ Xxxxxxx Xxxx Xxxxxx Name: Xxxxxxx Xxxx Xxxxxx Authorized Representative ~~XXXXX FARGO SECURITIES~~SCHEDULE I Name Number Firm Shares Xxxxxxx Xxxxx & Associates, Inc. 1,062,052 Xxxxx, Xxxxxxxx & Xxxxx, Inc. 354,016 Xxxxx Group, LLC By354,016 Total: ~~/s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS~~1,770,084 SCHEDULE II Schedule of Selling Shareholders Selling Shareholder Number of Firm Shares to be Sold Xxxxxxx X. Xxxxxxx, ~~a division of BB&T SECURITIES~~Xx. 67,042 Xxxxxxx X. Xxxxxxx, ~~LLC By: /s/~~ Xx. 82,042 Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total21,000 SCHEDULE III Public Offering Price per Share: ~~3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information~~ Underwriting Discount per Share: Number of Firm Shares: ~~3,250,000~~ Number of Additional Shares: ~~487,500 Public Offering Price: $23.75 per share~~ Issuer Free Writing Prospectus [None] SCHEDULE IV Persons Subject to Lock-up Name Xxxxxx Xxxxxxx Xxxxxxx Xxxxx Xxxxxxx X. Xxxxxxx, Xx. Xxxxxxx X. Xxxxxxx, Xx. Xxxxxxx X. Xxxxx Xxxxxxxxx X. Xxxxxx C. Xxxxx Xxxxxxx Xxxxx X. Xxxxxx Xxxxx X. XxXxxxxx Xxx X. Xxxxxx Xxxxx Xxxx Xxxxx X. Xxxxx, M.D. Xxxx Xxxxx Xxxxxx X. Xxxxxxx Xxxxx X. Xxxxxx Xxxxxxxx X. Xxxxxxx EXHIBIT A Form of ~~Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express~~Lock-up Agreement January 24, 2017 SmartFinancial, Inc. ~~Lock-Up Agreement XXXXXX~~0000 Xxxxxxxx Xxxx, ~~XXXXXXXX~~ Xxxxx 000 Xxxxxxxxx, Xxxxxxxxx XXXXXXX XXXXX & ~~COMPANY~~ASSOCIATES, ~~INCORPORATED XXXXXXXX~~ INC. ~~Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC~~ As ~~Representatives~~ Representative of the Several Underwriters xc/~~x Xxxxxx, Xxxxxxxx~~ o Raymond Xxxxx & ~~Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express~~Associates, Inc. ~~- Lock-Up Agreement Ladies and Gentlemen: The undersigned~~000 Xxxxxxxx Xxxxxxx Xx. Xxxxxxxxxx, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).XX 00000

Appears in 1 contract

Samples: Underwriting Agreement (Smartfinancial Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Bank of Commerce Holdings)

Research Analyst Independence. The ~~Company and the Selling Stockholder~~ TXO Parties acknowledge that (a) the ~~Underwriters’~~ Underwriter’s research analysts and research departments are required to be independent from ~~their respective~~ its investment banking ~~divisions~~ division and are subject to certain regulations and internal policies and (b) the ~~Underwriters’~~ Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the ~~Company~~Partnership, the value of the Common ~~Stock~~ Units and/or the offering that differ from the views of their ~~respective~~ investment banking ~~divisions~~division. The ~~Company and the Selling Stockholder~~ TXO Parties hereby waive and release, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the ~~Underwriters~~ Underwriter with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the ~~Underwriters’~~ Underwriter’s independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the ~~Company or~~ TXO Parties by the ~~Selling Stockholder by any~~ Underwriter’s investment banking division. The ~~Company and the Selling Stockholder~~ TXO Parties acknowledge that ~~each of~~ the ~~Underwriters~~ Underwriter is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in ~~debt~~ the Common Units or ~~equity~~ any other securities of the ~~companies that are the subject of the transactions contemplated by this Agreement~~Partnership. Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the ~~Company, the Selling Stockholder~~ TXO Parties and the ~~several Underwriters~~Underwriter. Very truly yours, ~~HEARTLAND EXPRESS~~TXO Partners, ~~INC.~~ L.P. By: TXO Partners GP, LLC, its general partner /s/ Xxxxx X. Xxxx ~~X. Xxxxxxx~~ Name: Xxxxx X. Xxxx ~~X. Xxxxxxx~~ Title: ~~Executive Vice~~ President of ~~Finance~~ Business Operations and Chief Financial Officer ~~SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ TXO Partners GP, LLC /s/ ~~Xxxxxxxx~~ Xxxxx X. ~~Xxxxxx~~ Xxxx Name: ~~Xxxxxxxx~~ Xxxxx X. ~~Xxxxxx~~ Xxxx Title: ~~Trustee~~ President of Business Operations and Chief Financial Officer CONFIRMED as of the date first above mentioned, ~~on behalf of the Representatives and the other several Underwriters named in Schedule I hereto~~as Underwriter. ~~XXXXXX~~XXXXXXX XXXXX & ASSOCIATES, ~~XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. By: /s/ ~~Xxxxxxx~~ Xxxxxx ~~Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X.~~ Xxxxx Authorized Representative ~~Xxxxxxx X. Xxxxx Managing Director US 3297123v.16~~ Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II (a) Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Prospectuses

Appears in 1 contract

Samples: TXO Partners, L.P.

Appears in 1 contract

Samples: Underwriting Agreement (Casella Waste Systems Inc)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that (aiv) the ~~Underwriters’~~ Underwriter’s research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (bv) the ~~Underwriters’~~ Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the ~~Underwriters~~ Underwriter with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the ~~Underwriters’~~ Underwriter’s independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by any Underwriter’s investment banking division. The Company ~~and~~ acknowledges the ~~Selling Stockholder acknowledge that each of the Underwriters~~ Underwriter is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature Page Follows] Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the Company, the ~~Selling Stockholder~~ Guarantor and the ~~several Underwriters~~Underwriter. Very truly yours, ~~HEARTLAND EXPRESS,~~ AMERANT BANCORP INC. By: /s/ ~~Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009~~ Xxxxxx ~~Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X.~~ Xxxxxx Name: ~~Xxxxxxxx X.~~ Xxxxxx Xxxxxx Title: ~~Trustee~~ Vice Chairman and CEO 30 AMERANT FLORIDA BANCORP INC. By: /s/ Xxxxxx Xxxxxxxxxx Name: Xxxxxx Xxxxxxxxxx Title: Treasurer CONFIRMED AND ACCEPTED, as of the date first above mentioned. XXXXXXX XXXXX & ASSOCIATES, ~~on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. By: /s/ ~~Xxxxxxx Xxxxxx~~ Xxxx Xxxxx Name: Xxxx Xxxxx Title: Authorized ~~Representative XXXXX FARGO SECURITIES~~Signatory SCHEDULE I [See attached] Sch. I 1 Filed pursuant to Rule 433 Registration File No. 333-238958 Supplementing the Preliminary Prospectus Supplement dated June 16, ~~LLC By~~2020 (To Prospectus dated June 15, 2020) Amerant Bancorp Inc. Pricing Term Sheet June 16, 2020 $46,000,000 5.75% Senior Notes due 2025 Issuer: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Amerant Bancorp Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”~~), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx &~~ ) Guarantor: Amerant Florida Bancorp Inc. Expected Ratings:* BBB- by Xxxxx Bond Rating Agency A- by Xxxx-Xxxxx Ratings Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).

Appears in 1 contract

Samples: Underwriting Agreement (Amerant Bancorp Inc.)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by any Underwriter’s investment banking division. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ If the foregoing correctly sets forth the ~~agreement~~ understanding between the Underwriters and the Company, please so indicate in the ~~Selling Stockholder and the several Underwriters~~space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. Very truly yours, ~~HEARTLAND EXPRESS~~PEAK RESORTS, INC. ~~/s/ Xxxx X. Xxxxxxx~~ By: Name: ~~Xxxx X. Xxxxxxx~~ Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of Accepted on the date first above ~~mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto~~written. FBR CAPITAL MARKETS & CO. By: Name: Title: XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: ~~/s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By~~Name: ~~/s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By~~Title: ~~/s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division~~ For itself and as Representatives of ~~BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16~~ the other Underwriters named on Schedule I ~~Name~~ hereto. SCHEDULE I Underwriter Number ~~ofFirm~~ of Initial Shares to be Purchased FBR Capital Markets & Co. Xxxxxx, Xxxxxxxx & Company, Incorporated ~~975,000 Xxxxxxxx~~ Xxxxxx X. Xxxxx & Co. Incorporated Xxxxxx Xxxxxxxxxx Xxxxx LLC Xxxxxxxxxxx & Co. Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Total EXHIBIT A-1 Lock-Up Agreement ~~XXXXXX~~, ~~XXXXXXXX~~ 2014 FBR Capital Markets & ~~COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x~~ Co. Xxxxxx, Xxxxxxxx & Company, Incorporated ~~Xxx~~ c/o FBR Capital Markets & Co. 0000 00xx Xxxxxx Xxxxx ~~Xxxxxx, 00xx~~ Xxxxx 0000 Xxxxxxxxx, ~~Xxxxxxxx~~ XX 00000 ReAttn: ~~Heartland Express, Inc. - Lock-Up Agreement~~ Syndicate Department Ladies and Gentlemen: The ~~undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries,~~ undersigned understands that FBR Capital Markets & Co. and Xxxxxx, Xxxxxxxx & Company, ~~Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets~~Incorporated (the each, a ~~division of BB&T Securities, LLC (~~“Representative” and together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)) with Peak Resorts, ~~on behalf of the several Underwriters named in Schedule I to such agreement (collectively~~Inc., ~~the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ a Missouri corporation (the “~~Selling Stockholder~~Company”), providing for a the public offering (the “Public Offering”) by the Representatives of ~~Shares~~ shares of common stock (~~as defined in~~ “Firm Shares”), par value $0.01 per share, of the ~~Underwriting Agreement~~Company (the “Shares”). ~~In consideration of~~ To induce the ~~agreement by~~ Representatives to continue its efforts in connection with the ~~Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged~~Public Offering, the undersigned hereby agrees that, without the prior written consent of the Representatives, it will not, during the period ~~beginning~~ commencing on the date hereof and ending on ~~the date that is 90~~ 180 days ~~from~~ after the date of the final prospectus (the “Prospectus”) relating to the Public Offering (the “Lock-Up Period”), ~~the undersigned agrees that~~(1) offer, ~~without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer~~pledge, sell, contract to sell, ~~pledge~~grant, lend, ~~grant any option to purchase, make any short sale~~ or otherwise transfer or dispose of of, directly or indirectly, any ~~shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock,~~ Shares or any securities convertible ~~into,~~ into or exercisable or exchangeable for Shares, or ~~that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned~~ (~~including holding as a custodian~~2) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in enter into any ~~hedging~~ swap or other ~~transaction~~ arrangement that ~~is designed~~ transfers to ~~result in~~another, in whole or ~~that reasonably could be expected to lead to~~in part, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the ~~Undersigned’s~~ economic consequences of ownership of the Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Shares or ~~with respect to any security that includes~~such other securities, ~~relates to~~ in cash or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Sharesotherwise. Notwithstanding the foregoing, the undersigned ~~may, during~~ may transfer Shares without the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member prior consent of the ~~immediate family~~ Representatives in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the ~~undersigned~~Public Offering, provided that ~~the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii~~no filing under Section 16(a) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of Shares or other securities acquired in such open market transactions, (b) transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no ~~other public~~ filing ~~or report regarding such transfer~~ under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the Lock-Up up Period~~. For purposes~~ , (c) transfer of ~~this Lock-Up Agreement~~Shares to a charity or educational institution, ~~“immediate family” shall mean~~ or (d) if the undersigned, directly or indirectly, controls a corporation, partnership, limited liability company or other business entity, any ~~relationship by blood~~transfers of Shares to any shareholder, ~~marriage~~ partner or ~~adoption~~member of, ~~not more remote than first cousin. As~~ or owner of ~~the date hereof~~similar equity interests in, the ~~Undersigned’s Shares are not~~undersigned, ~~and for~~ as the ~~duration of this Lock-Up Agreement the Undersigned’s Shares will not~~ case may be, ~~pledged~~if, ~~hypothecated~~in any such case, ~~or granted as collateral or security~~ such transfer is not for ~~any obligation~~value. [In addition, ~~notwithstanding~~ the ~~foregoing,~~ undersigned agrees that during the Lock-Up Period, without the ~~undersigned may sell or otherwise dispose~~ prior written consent of the ~~Undersigned~~Representatives, it will not make any demand for or exercise any right with respect to the registration of any Shares or any security convertible into or exercisable or exchangeable for Shares. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares ~~for~~ except in compliance with this Agreement. No provision in this agreement shall be deemed to restrict or prohibit the ~~purpose of raising proceeds to cover~~ exercise or ~~otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred~~ exchange by the undersigned ~~as a result~~ of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares, provided that the ~~vesting,~~ undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up Period, unless otherwise permitted pursuant to the terms of ~~restricted~~ this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a so-called “10b5-1” plan at any time (other than the entry into or modification of such a plan in such a manner as to cause the sale of any Shares or any securities convertible into or exercisable or exchangeable for Shares within the Lock-Up Period). The undersigned understands that the Company and the Representatives are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by March 31, 2015, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Representatives. Very truly yours, (Name): (Address) EXHIBIT A-2 Lock-Up Agreement , 2014 FBR Capital Markets & Co. Xxxxxx, Xxxxxxxx & Company, Incorporated c/o FBR Capital Markets & Co. 0000 00xx Xxxxxx Xxxxx Xxxxx 0000 Xxxxxxxxx, XX 00000 Attn: Syndicate Department The undersigned understands that FBR Capital Markets & Co. and Xxxxxx, Xxxxxxxx & Company, Incorporated (the each, a “Representative” and together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Peak Resorts, Inc., a Missouri corporation (the “Company”), providing for the public offering (the “Public Offering”) by the Representatives of shares of ~~Common Stock outstanding~~ common stock (“Firm Shares”), par value $0.01 per share, of the Company (the “Shares”). To induce the Representatives to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of the Representatives, it will not, during the period commencing on the date hereof ~~pursuant~~ and ending 180 days after the date of the final prospectus (the “Prospectus”) relating to ~~stock plans disclosed~~ the Public Offering (the “Lock-Up Period”), (1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any Shares or any securities convertible into or exercisable or exchangeable for Shares, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the ~~Time~~ economic consequences of ~~Sale Information~~ ownership of the Shares, whether any such transaction described in clause (~~as defined~~ 1) or (2) above is to be settled by delivery of Shares or such other securities, in cash or otherwise. Notwithstanding the ~~Underwriting Agreement)~~foregoing, the undersigned may transfer Shares without the prior consent of the Representatives in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the Public Offering, provided that ~~each such transfer shall occur on or about~~ no filing under Section 16(a) of the ~~time~~ Securities Exchange Act of ~~such vesting and~~ 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of ~~an amount of the Undersigned’s~~ Shares ~~that raises gross proceeds that~~or other securities acquired in such open market transactions, ~~as nearly as reasonably practicable, approximate such tax liability, and provided further that~~ (b) if the undersigned is ~~required~~ an individual, transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to ~~make~~ a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no filing under Section 16(a) of the Exchange ~~Act~~ Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the ~~Undersigned~~Lock-up Period, (c) transfer of Shares to a charity or educational institution, (d) if the undersigned is, or directly or indirectly controls, a corporation, partnership, limited liability company or other business entity, any transfers of Shares to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned, as the case may be, if, in any such case, such transfer is not for value, or (e) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer of Shares made by the undersigned (i) in connection with the sale or other bona fide transfer in a single transaction of all or substantially all of the undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigned’s assets, in any such case not undertaken for the purpose of avoiding the restrictions imposed by this agreement or (ii) to another corporation, partnership, limited liability company or other business entity so long as the transferee is an affiliate of the undersigned and such transfer is not for value. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares except in compliance with this Agreement. No provision in this agreement shall be deemed to restrict or prohibit the exercise or exchange by the undersigned of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares, provided that the undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up ~~Period as~~ Period, unless otherwise permitted pursuant to the terms of this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a ~~result~~ so-called “10b5-1” plan at any time (other than the entry into or modification of such ~~sale or disposition, the undersigned shall include~~ a ~~statement~~ plan in such ~~report~~ a manner as to cause the ~~effect~~ sale of any Shares or any securities convertible into or exercisable or exchangeable for Shares within the Lock-Up Period). The undersigned understands that the ~~purpose of such sale or other disposition was to cover tax obligations~~ Company and the Representatives are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned ~~in connection with the vesting of~~ further understands that this agreement is irrevocable and shall be binding upon the undersigned’s ~~restricted shares~~ heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by March 31, 2015, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of ~~Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx~~the Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, ~~who serves as trustee~~ including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of ~~several GRATs established by his mother~~which are subject to negotiation between the Company and the Representatives. Very truly yours, ~~Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause~~ (iiName): (Address) ANNEX 1 Subsidiaries Subsidiary Jurisdiction(s).

Appears in 1 contract

Samples: Underwriting Agreement (Peak Resorts Inc)

Appears in 1 contract

Samples: Underwriting Agreement (Byrna Technologies Inc.)

Research Analyst Independence. The ~~Company and the Selling Stockholder acknowledge~~ Partnership acknowledges that ~~(a)~~ the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal ~~policies~~ policies, and ~~(b) the~~ that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the ~~Company, the value of the Common Stock~~ TEPPCO Entities and/or the offering that differ from the views of their respective investment banking divisions. The ~~Company~~ Partnership hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ the Partnership may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by ~~the Underwriters’~~ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the ~~Company or the Selling Stockholder~~ Partnership by ~~any Underwriter’s~~ such Underwriters’ investment banking ~~division~~divisions. The ~~Company and the Selling Stockholder acknowledge~~ Partnership acknowledges that each of the Underwriters is a full service securities firm and as ~~such,~~ such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that ~~are~~ may be the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ If the foregoing ~~correctly sets forth~~ is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement ~~between~~ among the ~~Company, the Selling Stockholder~~ Partnership and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS~~TEPPCO PARTNERS, ~~INC.~~ L.P. By: Texas Eastern Products Pipeline Company, LLC, its General Partner By: /s/ ~~Xxxx~~ Xxxxxxx X. ~~Xxxxxxx~~ Xxxxxx Name: ~~Xxxx~~ Xxxxxxx X. ~~Xxxxxxx~~ Xxxxxx Title: ~~Executive~~ Vice President ~~of Finance~~ and Chief Financial Officer ~~SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED~~ The foregoing Agreement is hereby confirmed and accepted as of the date first ~~above mentioned, on behalf of the Representatives~~ written above. Citigroup Global Markets Inc. By: /s/ Xxxxxx Xxxxxxxxxx Name: Xxxxxx Xxxxxxxxxx Title: Vice President Xxxxxx Brothers Inc. By: /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx Title: Managing Director For themselves and the other several Underwriters named in Schedule I ~~hereto~~to the foregoing Agreement. ~~XXXXXX~~SCHEDULE I Underwriters Number of Firm Units to be Purchased Citigroup Global Markets Inc. 1,150,000 Xxxxxx Brothers Inc. 1,150,000 UBS Securities LLC 550,000 X.X. Xxxxxxx & Sons, ~~XXXXXXXX~~ Inc. 475,000 Wachovia Capital Markets, LLC 475,000 Xxxxxxx Xxxxx & ~~COMPANY~~Associates, ~~INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/~~ Inc. 300,000 RBC Capital Markets Corporation 300,000 Xxxxxxx Xxxxxx ~~Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx~~ Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. ~~975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T~~ 300,000 KeyBanc Capital Markets, a division of ~~BB&T Securities~~McDonald Investments Inc. 300,000 Total 5,000,000 SCHEDULE II SUBSIDIARIES TEPPCO Terminals Company, L.P. TEPPCO Interests, LLC ~~650,000 Total~~TG Pipeline GP, LLC TG Pipeline LP, LLC TG Pipeline, L.P. TEPPCO NGL Pipelines, LLC Chaparral Pipeline Company, X.X. Xxxx Pipeline Company, L.P. Panola Pipeline Company, L.P. Quanah Pipeline Company, L.P. Val Verde Gas Gathering Company, X.X. Xxxxxx Pipeline Company, L.P. Jonah Gas Gathering Company Jonah Gas Marketing, LLC TEPPCO Colorado, LLC TEPPCO Crude GP, LLC TEPPCO Crude Oil, L.P. Lubrication Services, L.P. TEPPCO Crude Pipeline, L.P. TEPPCO Seaway, L.P. SCHEDULE III LOCK-UP AGREEMENTS Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx W. Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxx Xxxxx X. Xxxxxxxx Xxxxxx X. Xxxxx J. Xxxxxxx Xxxxxxxx Xxxx X. Xxxxxxxxxxx Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxx Xxxxxxx X. XxXxxx Xxxxxxx Xxxxxxxx C. Xxxxx Xxxxxxx SCHEDULE IV SIGNIFICANT SUBSIDIARIES TE Products Pipeline Company, Limited Partnership Jonah Gas Gathering Company TEPPCO GP, Inc. TEPPCO Midstream Companies, L.P. Val Verde Gas Gathering Company, L.P. TEPPCO NGL Pipelines, LLC TEPPCO Crude Pipeline, L.P. TEPPCO Crude GP, LLC TCTM, L.P. TEPPCO Crude Oil, L.P. TEPPCO Seaway, L.P. SCHEDULE V Underwriting Agreement dated June 28, 2006 Registration Statement No. 333-110207 Representatives: ~~3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information~~ Citigroup Global Markets Inc. and Xxxxxx Brothers Inc. Title, Purchase Price and Description of Securities: Title: Units representing limited partner interests Number of Firm ~~Shares~~Units to be sold by the Partnership: ~~3,250,000~~ 5,000,000 Number of ~~Additional Shares~~Option Units to be sold by the Partnership: ~~487,500~~ 750,000 Price per Unit to Public ~~Offering Price~~(include accrued dividends, if any): $35.50 Price per Unit to the Underwriters — total: $~~23.75 per share~~ 34.08 Other provisions: Prior to the purchasing of ~~Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express~~Units being offered pursuant to the Final Prospectus, ~~Inc. Lock-Up Agreement XXXXXX~~between June 26 and June 28, ~~XXXXXXXX & COMPANY~~2006, ~~INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives~~ one of the ~~Several~~ Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)purchased, on behalf of the ~~several Underwriters named~~ underwriting syndicate, 160,000 LP Units at an average price of $35.6703 per LP Unit in ~~Schedule I~~ stabilizing transactions. Closing Date, Time and Location: July 5, 2006 at 10:00 a.m. at Xxxxx Xxxxx L.L.P., One Shell Plaza, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 Type of Offering: Non-Delayed Date referred to ~~such agreement (collectively,~~ in Section 5(i) after which the ~~“Underwriters”), with~~ Partnership may offer or sell securities issued by the ~~Company and~~ Partnership without the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration consent of the ~~agreement by the Underwriters~~ Representative(s): August 27, 2006 Modification of items to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by ~~clause (ii).~~the letter from KPMG LLP delivered pursuant to Section 6(e) at the Execution Time: None SCHEDULE VI Schedule of Free Writing Prospectuses included in the Disclosure Package Free Writing Prospectus filed by the Partnership with the Commission on June 28, 2006 Exhibit A Form of Opinion of Xxxxx Xxxxx L.L.P.

Appears in 1 contract

Samples: Teppco Partners Lp

Appears in 1 contract

Samples: Underwriting Agreement (Catalyst Biosciences, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Adma Biologics, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Lipocine Inc.)

Research Analyst Independence. The Company and the ~~Selling Stockholder~~ Operating Company acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the ~~Common~~ Series B Preferred Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the ~~Selling Stockholder~~ Operating Company hereby waive and release, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the ~~Selling Stockholder~~ Operating Company by any Underwriter’s investment banking division. The Company and the ~~Selling Stockholder~~ Operating Company acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature page follows.] Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the Company, the ~~Selling Stockholder~~ Operating Company, the Manager and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS~~JXXXXXXX CAPITAL, INC. By: /s/ ~~Xxxx X. Xxxxxxx~~ Dxxx Xxxxxxxx Name: ~~Xxxx X. Xxxxxxx~~ Dxxx Xxxxxxxx Title: Chief Executive ~~Vice President of Finance and Chief Financial~~ Officer ~~SELLING STOCKHOLDER~~JXXXXXXX CAPITAL OPERATING COMPANY, LLC By: ~~2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ Jxxxxxxx Capital, Inc., its managing member By: /s/ Dxxx Xxxxxxxx ~~X. Xxxxxx~~ Name: Dxxx Xxxxxxxx ~~X. Xxxxxx~~ Title: ~~Trustee~~ Chief Executive Officer JCAP ADVISORS, LLC By: /s/ Dxxx Xxxxxxxx Name: Dxxx Xxxxxxxx Title: Chief Executive Officer CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. ~~XXXXXX~~RXXXXXX JXXXX & ASSOCIATES, ~~XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. By: /s/ ~~Xxxxxxx Xxxxxx~~ Jxxxx Xxxxx Authorized Representative ~~XXXXX FARGO SECURITIES,~~ MXXXXX SXXXXXX & CO. LLC By: /s/ ~~Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx~~ Exxxxxx X. Xxxxx Authorized Representative ~~Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule~~ SCHEDULE I Name Number ~~ofFirm~~ Firm Shares ~~Xxxxxx~~Rxxxxxx Jxxxx & Associates, ~~Xxxxxxxx~~ Inc. 637,500 Mxxxxx Sxxxxxx & ~~Company~~Co. LLC 562,500 B. Xxxxx FBR, ~~Incorporated 975,000 Xxxxxxxx~~ Inc. ~~975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T~~ 150,000 BMO Capital ~~Markets, a division of BB&T Securities, LLC 650,000~~ Markets Corp. 75,000 KeyBanc Capital Markets Inc. 75,000 Total: ~~3,250,000 Schedule II~~ 1,500,000 Issuer Free Writing ~~Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx~~ Prospectus Issuer Free Writing Prospectus, dated January 19, 2018, and attached hereto as Schedule II-2. Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressTerm Sheet Filed Pursuant to Rule 433 Issuer Free Writing Prospectus dated January 19, 2018 Relating to Preliminary Prospectus Supplement dated January 18, 2018 to Prospectus dated June 24, 2016 Registration Statement No. 333-212049 Jxxxxxxx Capital, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re7.00% Series B Cumulative Redeemable Perpetual Preferred Stock Issuer: ~~Heartland Express~~Jxxxxxxx Capital, Inc. ~~- Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation~~ (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “RepresentativesIssuer”) ~~propose to enter into an Underwriting Agreement~~ Securities Offered: 7.00% Series B Cumulative Redeemable Perpetual Preferred Stock (~~the~~ “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public OfferingSeries B Preferred Stock”) ~~of Shares~~ Size: $37,500,000 (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the 1,500,000 shares) Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value Price / Liquidation Preference: $~~0.01~~ 25.00 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).share

Appears in 1 contract

Samples: Underwriting Agreement (Jernigan Capital, Inc.)

Research Analyst Independence. The Company ~~and the Selling Stockholder~~ acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by any Underwriter’s investment banking division. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the ~~Company, the Selling Stockholder~~ Company and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS,~~ PLX PHARMA INC. ~~/s/ Xxxx X. Xxxxxxx~~ By: Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee Title CONFIRMED as of the date first above mentioned, on behalf of the ~~Representatives~~ Representative and the other several Underwriters named in Schedule I hereto. ~~XXXXXX~~RXXXXXX JXXXX & ASSOCIATES, ~~XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. By: ~~/s/ Xxxxxxx Xxxxxx~~ Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Number Name ~~Number ofFirm~~ Firm Shares ~~Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000~~ Total: ~~3,250,000 Schedule~~ SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Prospectus SCHEDULE III Persons Subject to Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).up

Appears in 1 contract

Samples: Underwriting Agreement (PLX Pharma Inc.)

Research Analyst Independence. ~~The~~ Each of the Company and the Selling Stockholder ~~acknowledge~~ acknowledges that (a) the ~~Underwriters’~~ Underwriter’s research analysts and research departments are required to be independent from ~~their respective~~ its investment banking divisions and are subject to certain regulations and internal policies and (b) the ~~Underwriters’~~ Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the ~~Common Stock~~ Shares and/or the offering that differ from the views of ~~their respective~~ its investment banking divisions. The Company and the Selling Stockholder each hereby ~~waive~~ waives and ~~release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the ~~Underwriters~~ Underwriter with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the ~~Underwriters’~~ Underwriter’s independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and/or the Selling Stockholder by ~~any~~ the Underwriter’s investment banking division. The Company and the Selling Stockholder each acknowledge that ~~each of~~ the ~~Underwriters~~ Underwriter is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the Company, the Selling Stockholder and the ~~several Underwriters~~Underwriter. Very truly yours, ~~HEARTLAND EXPRESS,~~ ORBCOMM INC. By: /s/ Xxxxxxxxx X. Xx Xxxx ~~X. Xxxxxxx~~ Name: Xxxxxxxxx X. Xx Xxxx ~~X. Xxxxxxx~~ Title: Executive Vice ~~President of Finance~~ President, General Counsel and ~~Chief Financial Officer SELLING STOCKHOLDER~~Secretary CalPERS Corporate Partners, LLC By KMCP Advisors II LLC, its manager By: ~~2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ /s/ Xxxxxxx Xxxxxxxx ~~X. Xxxxxx~~ Name: Xxxxxxx Xxxxxxxx ~~X. Xxxxxx~~ Title: ~~Trustee~~ Managing Partner CONFIRMED as of the date first above mentioned. XXXXXXX XXXXX & ASSOCIATES, ~~on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. By: /s/ ~~Xxxxxxx~~ Xxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).SCHEDULE I

Appears in 1 contract

Samples: Underwriting Agreement (ORBCOMM Inc.)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that ~~(a)~~ the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal ~~policies~~ policies, and ~~(b) the~~ that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the ~~Company, the value of the Common Stock~~ Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ the Company may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by ~~the Underwriters’~~ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by ~~any Underwriter’s~~ such Underwriters’ investment banking ~~division~~divisions. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as ~~such,~~ such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that ~~are~~ may be the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ If the foregoing ~~correctly sets forth~~ is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the ~~agreement between the Company, the Selling Stockholder and the several Underwriters~~space provided below. Very truly yours, ~~HEARTLAND EXPRESS~~ATP OIL & GAS CORPORATION By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: President Accepted: September 23, 2009 X.X. XXXXXX SECURITIES INC. ~~/s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance~~ For itself and ~~Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned,~~ on behalf of the ~~Representatives and the other~~ several Underwriters ~~named~~ listed in Schedule I 1 hereto~~. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC~~. By: /s/ ~~Xxxxxxx Xxxxxx~~ Xxx Xxxxxxx-Xxxxx Authorized ~~Representative XXXXX FARGO SECURITIES,~~ Signatory Executive Director CREDIT SUISSE SECURITIES (USA) LLC ~~By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division~~ For itself and on behalf of ~~BB&T SECURITIES, LLC~~ the several Underwriters listed in Schedule 1 hereto. By: /s/ Xxxxxxx X. Xxxxx Authorized ~~Representative~~ Signatory X. X. XXXXXX & COMPANY, INC. By: /s/ Xxxxxxxxx X. Xxxxxxx Authorized Signatory CANACCORD XXXXX INC. By: /s/ Xxxxxxxxx X. Xxxxxx Authorized Signatory FIG PARTNERS, LLC By: /s/ Xxxxxxxx X. Xxxxxxx Authorized Signatory GLOBAL HUNTER SECURITIES, LLC By: /s/ Xxxxxx X. Xxxxxxx, XX Authorized Signatory XXXXXX XXXX INCORPORATED By: /s/ Xxxxx X. Xxxxxxx, Xx. Authorized Signatory XXXXXXX RICE & COMPANY L.L.C. By: /s/ Xxxxxx X. Xxxxxxxx Authorized Signatory NATIXIS BLEICHROEDER INC. By: /s/ Xxxxx X. Xxxxxx XX Authorized Signatory XXXXXXXXX CAPITAL PARTNERS, LLC. By: /s/ Xxxx Xxxxxxxxxxx Authorized Signatory XXXXXX & XXXXXXX, LLC By: /s/ Xxxx X. Xxxxx III Authorized Signatory SMH CAPITAL, INC. By: /s/ Xxxxxxx X. Xxxxxxx Authorized Signatory XXXXXXXXXX SECURITIES, INC. By: /s/ Xxxxxx Gaia Authorized Signatory Schedule 1 Underwriter Number of Shares X.X. Xxxxxx Securities Inc. 1,987,500 Credit Suisse Securities (USA) LLC 1,987,500 Canaccord Xxxxx ~~Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx~~Inc. 145,750 Xxxxxxxxx Capital Partners, ~~Xxxxxxxx~~ LLC. 145,750 SMH Capital, Inc. 145,750 Xxxxxx Xxxx Incorporated 132,500 Xxxxxxx Rice & Company L.L.C. 132,500 Xxxxxxxxxx Securities, Inc. 132,500 X. X. Xxxxxx & Company, ~~Incorporated 975,000 Xxxxxxxx~~ Inc. ~~975,000 Xxxxx Fargo~~ 106,000 Global Hunter Securities, LLC ~~650,000 BB&T Capital Markets, a division of BB&T Securities~~106,000 Natixis Bleichroeder Inc. 106,000 Xxxxxx & Xxxxxxx, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities106,000 FIG Partners, LLC ~~BB&T Capital Markets, a division~~ 66,250 Total 5,300,000 Annex A-1 [Form of ~~BB&T Securities, LLC As Representatives~~ Opinion of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing Counsel for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).]

Appears in 1 contract

Samples: Atp Oil & Gas Corp

Appears in 1 contract

Samples: Underwriting Agreement (PLx Pharma Inc.)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that ~~(a)~~ the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal ~~policies~~ policies, and ~~(b) the~~ that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the ~~Company, the value of the Common Stock~~ Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ the Company may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by ~~the Underwriters’~~ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by ~~any Underwriter’s~~ such Underwriters’ investment banking ~~division~~divisions. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as ~~such,~~ such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that ~~are~~ may be the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ If the foregoing correctly sets forth the ~~agreement~~ understanding between you and the Company, please so indicate in the ~~Selling Stockholder and the several Underwriters~~space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. Very truly yours, ~~HEARTLAND EXPRESS, INC.~~ XXXXXXXX & ILSLEY CORPORATION By: /s/ ~~Xxxx~~ Xxxxxxx X. ~~Xxxxxxx~~ Xxxxxxxx Name: ~~Xxxx~~ Xxxxxxx X. ~~Xxxxxxx~~ Xxxxxxxx Title: ~~Executive Vice President of Finance~~ Sr. V.P., CAO, and ~~Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED~~ GeneralCounsel Accepted as of the date ~~first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto~~hereof: XXXXXX XXXXXXX & CO. ~~XXXXXX, XXXXXXXX & COMPANY,~~ INCORPORATED By: /s/ ~~Xxxxx~~ Xxxxxxx ~~Authorized Representative XXXXXXXX~~ X. Xxxx Name: Xxxxxxx X. Xxxx Title: Managing Director BARCLAYS CAPITAL INC. By: /s/ Xxxxxxxx Xxxx Name: Xxxxxxxx Xxxx Title: Vice President For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. SCHEDULE I Underwriting Agreement dated June 11, 2009 Registration Statement No. 333-147162 Representatives: Xxxxxx Xxxxxxx & Co. Incorporated Barclays Capital Inc. Title, Purchase Price and Description of Securities: Title: Common Stock, $1.00 par value per share Number of Firm Securities to be sold by the Company: 87,000,000 Number of Option Securities to be sold by the Company: 13,000,000 Price per Share to Public (include accrued dividends, if any): $5.75 Price per Share to the Underwriters – total: $5.52 Other provisions: None Closing Date, Time and Location: June 17, 2009 at 10:00 a.m. at the offices of Xxxxx Xxxxx LLP, 00 Xxxxx Xxxxxx Xxxxx, Chicago, Illinois 60606 Type of Offering: Non-Delayed SCHEDULE II Underwriters Number of Firm Securities to be Purchased Xxxxxx Xxxxxxx & Co. Incorporated 43,500,000 Barclays Capital Inc. 26,100,000 Credit Suisse Securities (USA) LLC 8,700,000 Xxxxxx X. Xxxxx & Co. Incorporated 4,350,000 Xxxxx, Xxxxxxxx & Xxxxx, Inc. 4,350,000 Total…………………………. 87,000,000 SCHEDULE III None ANNEX I(a) FORM OF COMFORT LETTER ANNEX I(b) FORM OF BRING-DOWN COMFORT LETTER EXHIBIT A The following form of letter shall be executed and delivered by the following persons: Directors Xxxxxx X. Xxxx Xxx X. Xxxxx Xxxx X. Xxxxxxx, Xx. Xxx X. Xxxxxxx Xxxxxx ~~Authorized Representative XXXXX FARGO SECURITIES~~X. Xxxxxxx Xxxxx X. Xxxxx Xxxxxxxxx X. Xxxxx Xxxx X. Xxxxxxxx San X. Xxx, ~~LLC By: /s/~~ Xx. Xxxxxx X. X’Xxxxx Xxxxx X. Xxxxxxx, III Xxxx X. Xxxxxx ~~Authorized Representative~~ Xxxxxx X. Xxxxxxxxx Xxxxx ~~Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/~~ X. Xxxxxxx Executive Officers Xxxx X. Xxxxxxx Xxxxxxx X. Xxxxx ~~Authorized Representative~~ Xxx X. Xxxxxxxxxx Xxxx X. Xxxxxxxxx Xxxxxxxx X. Xxxxxxx Xxxx X. Xxxxxx Xxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxxx Xxxx X. Xxxxx Xxxxxxxx X. Xxxxxxxxxx Xxxxx X. Xxxxx Xxxx X. Xxxxxxxxxxxxx Xxxxxxx X. Xxxx Xxxxxx X. X'Xxxxx Xxxx X. Xxxxxx Xxxx X. Xxxxxxx Xxxxxx X. Root Xxxxxxx X. Xxxxx ~~Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000~~ Xxxxxx X. Xxxxx ~~Fargo Securities, LLC 650,000 BB&T Capital Markets, a division~~ Form of ~~BB&T Securities, LLC 650,000 Total~~Agreement: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement ~~XXXXXX~~June 11, ~~XXXXXXXX~~ 2009 Xxxxxx Xxxxxxx & ~~COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T~~ Co. Incorporated Barclays Capital ~~Markets, a division of BB&T Securities, LLC~~ Inc. As Representatives of the ~~Several~~ several Underwriters xc/~~x Xxxxxx~~o Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, ~~Xxxxxxxx & Company, Incorporated~~ Xxx ~~Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx~~ Xxxx 00000 Re: ~~Heartland Express, Inc. -~~ Xxxxxxxx & Ilsley Corporation – Lock-Up Agreement Ladies and Gentlemen: The ~~undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries,~~ undersigned understands that ~~Xxxxxx~~you, ~~Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC~~ as representatives (~~together,~~ the “Representatives”) ), propose to enter into an Underwriting Agreement ~~(the “Underwriting Agreement”),~~ on behalf of the several Underwriters named in Schedule I II to such agreement (collectively, the “Underwriters”), with ~~the Company and the 2009~~ Xxxxxxxx & Xxxxxx ~~Heartland Trust UTA 7/15/2009~~ Corporation, a Wisconsin corporation (the “~~Selling Stockholder~~Company”), providing for a public offering of shares of Common Stock of the Company (the “~~Public Offering~~Securities”) ~~of Shares (as defined in~~ pursuant to the ~~Underwriting Agreement)~~Registration Statement on Form S-3 that became effective upon filing on November 6, 2007. In consideration of the agreement by the Underwriters to offer and sell the ~~Shares~~Securities, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees ~~that, during the period beginning on~~ that from the date hereof to and ~~ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering~~ including September 9, 2009 (the “Lock-Up Period”)~~, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated~~, the undersigned will not offer, sell, contract to sell, pledge~~, lend~~, grant any option to purchase, make any short sale or otherwise dispose of any shares of Common Stock of the Company~~’s Common Stock, par value $0.01 per share (the “Common Stock”)~~, or any options or warrants to purchase any shares of Common ~~Stock~~Stock of the Company, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common ~~Stock~~Stock of the Company, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (~~collectively~~ collectively, the “Undersigned's ’s Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction ~~that~~ which is designed to ~~result in,~~ or ~~that~~ which reasonably could be expected to lead ~~to,~~ to or result in a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to to, or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned ~~may, during the Lock-Up Period,~~ may transfer the Undersigned’s Shares (i) as a bona fide gift or ~~gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned~~gifts, provided ~~that~~ that, except in the case of charitable gifts, the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, partnership, limited liability company or other entity for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, provided that the ~~trustee of the trust~~ transferee agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) ~~above that such transfers are not required to be reported and are not voluntarily reported~~ with the ~~Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16~~ prior written consent of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up PeriodRepresentatives. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. ~~As of the date hereof~~The undersigned now has, ~~the Undersigned’s Shares are not~~and, ~~and~~ except as contemplated by clause (i), (ii), or (iii) above, for the duration of this Lock-Up Agreement will have, good and marketable title to the Undersigned’s ~~Shares will not be~~Shares, ~~pledged~~free and clear of all liens, ~~hypothecated~~encumbrances, ~~or granted as collateral or security for any obligation~~and claims whatsoever. ~~[In addition, notwithstanding~~ The undersigned also agrees and consents to the ~~foregoing, during~~ entry of stop transfer instructions with the ~~Lock-Up Period,~~ Company’s transfer agent and registrar against the ~~undersigned may sell or otherwise dispose~~ transfer of the Undersigned’s Shares ~~for~~ except in compliance with the ~~purpose of raising proceeds to cover or otherwise satisfying~~ foregoing restrictions. The undersigned understands that the ~~reasonably estimated U.S. federal or state tax liability incurred by~~ Company and the ~~undersigned as a result of the vesting, during the~~ Underwriters are relying upon this Lock-Up ~~Period,~~ Agreement in proceeding toward consummation of ~~restricted shares of Common Stock outstanding on~~ the ~~date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided~~ offering. The undersigned further understands that ~~each such transfer shall occur on or about the time of such vesting~~ this Lock-Up Agreement is irrevocable and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of binding upon the undersigned’s ~~restricted shares~~ heirs, legal representatives, successors, and assigns. Very truly yours, ________________________________________ Exact Name of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Shareholder ________________________________________ Authorized Signature

Appears in 1 contract

Samples: Marshall & Ilsley Corp

Appears in 1 contract

Samples: Underwriting Agreement (Adma Biologics, Inc.)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by any Underwriter’s investment banking division. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ If the foregoing correctly sets forth the ~~agreement~~ understanding between the Underwriters and the Company, please so indicate in the ~~Selling Stockholder and the several Underwriters~~space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. . Very truly yours, ~~HEARTLAND EXPRESS~~PEAK RESORTS, INC. ~~/s/ Xxxx X. Xxxxxxx~~ By: Name: ~~Xxxx X. Xxxxxxx~~ Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of Accepted on the date first above ~~mentioned~~written. XXXXXXX XXXXX & ASSOCIATES, ~~on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. By: ~~/s/ Xxxxxxx~~ Name: Title: SCHEDULE I Xxxxxx ~~Authorized Representative XXXXX FARGO SECURITIES~~& Xxxxxxx, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. EXHIBIT A-1 Lock-Up Agreement ~~XXXXXX~~___________ __, ~~XXXXXXXX~~ 20__ Xxxxxxx Xxxxx & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland ExpressAssociates, Inc. ~~- Lock-Up Agreement~~ 000 Xxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxxx, XX 00000 Attn: Syndicate Dept Ladies and Gentlemen: The ~~undersigned~~undersigned understands that Xxxxxxx Xxxxx & Associates, ~~an officer and/or director of Heartland Express, Inc., a Nevada corporation~~ Inc. (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “RepresentativesRepresentative”) ~~propose~~ proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”)) with Peak Resorts, ~~on behalf of the several Underwriters named in Schedule I to such agreement (collectively~~Inc., ~~the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ a Missouri corporation (the “~~Selling Stockholder~~Company”), providing for a the public offering (the “Public Offering”) by the Representative of ~~Shares~~ __________ shares of common stock (~~as defined in~~ “Firm Shares”), par value $0.01 per share, of the ~~Underwriting Agreement~~Company (the “Shares”). ~~In consideration of~~ To induce the ~~agreement by~~ Representative to continue its efforts in connection with the ~~Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged~~Public Offering, the undersigned hereby agrees that, without the prior written consent of the Representative, it will not, during the period ~~beginning~~ commencing on the date hereof and ending on ~~the date that is 90~~ 180 days ~~from~~ after the date of the final prospectus (the “Prospectus”) relating to the Public Offering (the “Lock-Up Period”), ~~the undersigned agrees that~~(1) offer, ~~without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer~~pledge, sell, contract to sell, ~~pledge~~grant, lend, ~~grant any option to purchase, make any short sale~~ or otherwise transfer or dispose of of, directly or indirectly, any ~~shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock,~~ Shares or any securities convertible ~~into,~~ into or exercisable or exchangeable for Shares, or ~~that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned~~ (~~including holding as a custodian~~2) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in enter into any ~~hedging~~ swap or other ~~transaction~~ arrangement that ~~is designed~~ transfers to ~~result in~~another, in whole or ~~that reasonably could be expected to lead to~~in part, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the ~~Undersigned’s~~ economic consequences of ownership of the Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Shares or ~~with respect to any security that includes~~such other securities, ~~relates to~~ in cash or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Sharesotherwise. Notwithstanding the foregoing, the undersigned ~~may, during~~ may transfer Shares without the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member prior consent of the ~~immediate family~~ Representative in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the ~~undersigned~~Public Offering, provided that ~~the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii~~no filing under Section 16(a) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of Shares or other securities acquired in such open market transactions, (b) transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no ~~other public~~ filing ~~or report regarding such transfer~~ under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the Lock-Up up Period~~. For purposes~~ , (c) transfer of ~~this Lock-Up Agreement~~Shares to a charity or educational institution, ~~“immediate family” shall mean~~ or (d) if the undersigned, directly or indirectly, controls a corporation, partnership, limited liability company or other business entity, any ~~relationship by blood~~transfers of Shares to any shareholder, ~~marriage~~ partner or ~~adoption~~member of, ~~not more remote than first cousin. As~~ or owner of ~~the date hereof~~similar equity interests in, the ~~Undersigned’s Shares are not~~undersigned, ~~and for~~ as the ~~duration of this Lock-Up Agreement the Undersigned’s Shares will not~~ case may be, ~~pledged~~if, ~~hypothecated~~in any such case, ~~or granted as collateral or security~~ such transfer is not for ~~any obligation~~value. [In addition, ~~notwithstanding~~ the ~~foregoing,~~ undersigned agrees that during the Lock-Up Period, without the ~~undersigned may sell or otherwise dispose~~ prior written consent of the ~~Undersigned~~Representative, it will not make any demand for or exercise any right with respect to the registration of any Shares or any security convertible into or exercisable or exchangeable for Shares. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares ~~for~~ except in compliance with this Agreement. If (i) the ~~purpose~~ Company issues an earnings release or material news, during the last 17 days of ~~raising proceeds~~ the Lock-Up Period, or (ii) prior to ~~cover~~ the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed by this agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release, unless the Representative waives such extension. No provision in this agreement shall be deemed to restrict or ~~otherwise satisfying~~ prohibit the ~~reasonably estimated U.S. federal~~ exercise or ~~state tax liability incurred~~ exchange by the undersigned ~~as a result~~ of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares, provided that the ~~vesting,~~ undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up Period, unless otherwise permitted pursuant to the terms of ~~restricted~~ this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a so-called “10b5-1” plan at any time (other than the entry into or modification of such a plan in such a manner as to cause the sale of any Shares or any securities convertible into or exercisable or exchangeable for Shares within the Lock-Up Period). The undersigned understands that the Company and the Representative are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by ____________, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Representative. Very truly yours, (Name): (Address) EXHIBIT A-2 Lock-Up Agreement ___________ __, 20__ Xxxxxxx Xxxxx & Associates, Inc. 000 Xxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxxx, XX 00000 Attn: Syndicate Dept The undersigned understands that Xxxxxxx Xxxxx & Associates, Inc. (the “Representative”) proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Peak Resorts, Inc., a Missouri corporation (the “Company”), providing for the public offering (the “Public Offering”) by the Representative of __________ shares of ~~Common Stock outstanding~~ common stock (“Firm Shares”), par value $0.01 per share, of the Company (the “Shares”). To induce the Representative to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of the Representative, it will not, during the period commencing on the date hereof ~~pursuant~~ and ending 180 days after the date of the final prospectus (the “Prospectus”) relating to ~~stock plans disclosed~~ the Public Offering (the “Lock-Up Period”), (1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any Shares or any securities convertible into or exercisable or exchangeable for Shares, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the ~~Time~~ economic consequences of ~~Sale Information~~ ownership of the Shares, whether any such transaction described in clause (~~as defined~~ 1) or (2) above is to be settled by delivery of Shares or such other securities, in cash or otherwise. Notwithstanding the ~~Underwriting Agreement)~~foregoing, the undersigned may transfer Shares without the prior consent of the Representative in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the Public Offering, provided that ~~each such transfer shall occur on or about~~ no filing under Section 16(a) of the ~~time~~ Securities Exchange Act of ~~such vesting and~~ 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of ~~an amount of the Undersigned’s~~ Shares ~~that raises gross proceeds that~~or other securities acquired in such open market transactions, ~~as nearly as reasonably practicable, approximate such tax liability, and provided further that~~ (b) if the undersigned is ~~required~~ an individual, transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to ~~make~~ a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no filing under Section 16(a) of the Exchange ~~Act~~ Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the ~~Undersigned~~Lock-up Period, (c) transfer of Shares to a charity or educational institution, (d) if the undersigned is, or directly or indirectly controls, a corporation, partnership, limited liability company or other business entity, any transfers of Shares to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned, as the case may be, if, in any such case, such transfer is not for value, or (e) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer of Shares made by the undersigned (i) in connection with the sale or other bona fide transfer in a single transaction of all or substantially all of the undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigned’s assets, in any such case not undertaken for the purpose of avoiding the restrictions imposed by this agreement or (ii) to another corporation, partnership, limited liability company or other business entity so long as the transferee is an affiliate of the undersigned and such transfer is not for value. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares except in compliance with this Agreement. If (i) the Company issues an earnings release or material news, during the last 17 days of the Lock-Up Period, or (ii) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed by this agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release, unless the Representative waives such extension. No provision in this agreement shall be deemed to restrict or prohibit the exercise or exchange by the undersigned of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares, provided that the undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up ~~Period as~~ Period, unless otherwise permitted pursuant to the terms of this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a ~~result~~ so-called “10b5-1” plan at any time (other than the entry into or modification of such ~~sale or disposition, the undersigned shall include~~ a ~~statement~~ plan in such ~~report~~ a manner as to cause the ~~effect~~ sale of any Shares or any securities convertible into or exercisable or exchangeable for Shares within the Lock-Up Period). The undersigned understands that the ~~purpose of such sale or other disposition was to cover tax obligations~~ Company and the Representative are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned ~~in connection with the vesting of~~ further understands that this agreement is irrevocable and shall be binding upon the undersigned’s ~~restricted shares~~ heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by _____________, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of ~~Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx~~the Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, ~~who serves as trustee~~ including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of ~~several GRATs established by his mother~~which are subject to negotiation between the Company and the Representative. Very truly yours, ~~Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause~~ (~~ii).~~Name): (Address) ANNEX 1 Subsidiaries ANNEX 2 Initial Properties Hidden Valley Snow Creek Boston Xxxxx Brandywine Paoli Peaks Attitash Mount Snow Wildcat Mountain Mad River Crotched Mountain Xxxx Xxxxx Big Boulder

Appears in 1 contract

Samples: Underwriting Agreement (Peak Resorts Inc)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that ~~(a)~~ the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal ~~policies~~ policies, and ~~(b) the~~ that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the ~~Company, the value of the Common Stock~~ Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ the Company may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by ~~the Underwriters’~~ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by ~~any Underwriter’s~~ such Underwriters’ investment banking ~~division~~divisions. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as ~~such,~~ such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that ~~are~~ may be the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ If the foregoing correctly sets forth the ~~agreement~~ understanding between you and the Company, please so indicate in the ~~Selling Stockholder and the several Underwriters~~space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. Very truly yours, HEARTLAND EXPRESS, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC XXXXXX CORPORATION By: /s/ Xxxxxxx X. ~~Xxxxx Authorized Representative~~ Smith______________ Name: Xxxxxxx X. Xxxxx Title: Senior Vice President and Chief Financial Officer Accepted as of the date hereof: XXXXXX XXXXXXX & CO. INCORPORATED By: /s/ Xxxxxxx X. Pott_____________ Name: Xxxxxxx X. Xxxx Title: Managing Director ~~US 3297123v.16~~ XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By: /s/ Xxxxxxx O’Grady____________ Name: Xxxxxxx X’Xxxxx Title: Managing Director, Head of Depositories For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. SCHEDULE I ~~Name~~ Underwriting Agreement dated October 21, 2009 Registration Statement No. 333-147162 Representatives: Xxxxxx Xxxxxxx & Co. Incorporated Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Title, Purchase Price and Description of Securities: Title: Common Stock, $1.00 par value per share Number ~~ofFirm Shares~~ of Firm Securities to be sold by the Company: 136,000,000 Number of Option Securities to be sold by the Company: 20,400,000 Price per Share to Public (include accrued dividends, if any): $5.75 Price per Share to the Underwriters – total: $5.52 Other provisions: None Closing Date, Time and Location: October 27, 2009 at 10:00 a.m. at the offices of Xxxxx Xxxxx LLP, 00 Xxxxx Xxxxxx Xxxxx, Chicago, Illinois 60606 Type of Offering: Non-Delayed SCHEDULE II Underwriters Number of Firm Securities to be Purchased Xxxxxx Xxxxxxx & Co. Incorporated 68,000,000 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 40,800,000 Xxxxxx X. Xxxxx & Co. Incorporated 5,440,000 Xxxxxx Xxxxxx & Company, Inc. 5,440,000 Xxxxxxxxxxx & Co. Inc. 5,440,000 Sandler X’Xxxxx & Partners, L.P. 5,440,000 Xxxxxx, Xxxxxxxx & Company, Incorporated ~~975,000~~ 5,440,000 Total 136,000,000 SCHEDULE III None ANNEX I(a) FORM OF COMFORT LETTER 1 ANNEX I(b) FORM OF BRING-DOWN COMFORT LETTER EXHIBIT A The following form of letter shall be executed and delivered by the following persons: Directors Xxxxxx X. Xxxx Xxx X. Xxxxx Xxxx X. Xxxxxxx, Xx. Xxx X. Xxxxxxx Xxxxxx X. Xxxxxxx Xxxxx X. Xxxxx Xxxxxxxxx X. Xxxxx Xxxx X. Xxxxxxxx ~~Inc. 975,000~~ San X. Xxx, Xx. Xxxxxx X. X’Xxxxx Xxxxx ~~Fargo Securities~~X. Xxxxxxx, ~~LLC 650,000 BB&T Capital Markets, a division~~ III Xxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxxx Executive Officers Xxxx X. Xxxxxxx Xxxxxxx X. Xxxxx Xxx X. Xxxxxxxxxx Xxxx X. Xxxxxxxxx Xxxxxxxx X. Xxxxxxx Xxxx X. Xxxxxx Xxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxxx Xxxx X. Xxxxx Xxxxxxxx X. Xxxxxxxxxx Xxxxx X. Xxxxx Xxxx X. Xxxxxxxxxxxxx Xxxxxxx X. Xxxx Xxxxxx X. X'Xxxxx Xxxx X. Xxxxxx Xxxx X. Xxxxxxx Xxxxxx X. Root Xxxxxxx X. Xxxxx Xxxxxx X. Xxxxx Form of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement ~~XXXXXX~~October 21, ~~XXXXXXXX~~ 2009 Xxxxxx Xxxxxxx & ~~COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC~~ Co. Incorporated As ~~Representatives~~ Representative of the ~~Several~~ several Underwriters ~~x/x Xxxxxx~~0000 Xxxxxxxx Xxx Xxxx, ~~Xxxxxxxx & Company, Incorporated~~ Xxx ~~Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx~~ Xxxx 00000 Re: ~~Heartland Express, Inc. -~~ Xxxxxxxx & Ilsley Corporation – Lock-Up Agreement Ladies and Gentlemen: The ~~undersigned~~undersigned understands that you, ~~an officer and/or director of Heartland Express, Inc., a Nevada corporation~~ as representative (the “~~Company~~Representative”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement ~~(the “Underwriting Agreement”),~~ on behalf of the several Underwriters named in Schedule I II to such agreement (collectively, the “Underwriters”), with ~~the Company and the 2009~~ Xxxxxxxx & Xxxxxx ~~Heartland Trust UTA 7/15/2009~~ Corporation, a Wisconsin corporation (the “~~Selling Stockholder~~Company”), providing for a public offering of shares of Common Stock of the Company (the “~~Public Offering~~Securities”) ~~of Shares (as defined in~~ pursuant to the ~~Underwriting Agreement)~~Registration Statement on Form S-3 that became effective upon filing on November 6, 2007. In consideration of the agreement by the Underwriters to offer and sell the ~~Shares~~Securities, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees ~~that, during the period beginning on~~ that from the date hereof to and ~~ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering~~ including January 19, 2010 (the “Lock-Up Period”)~~, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated~~, the undersigned will not offer, sell, contract to sell, pledge~~, lend~~, grant any option to purchase, make any short sale or otherwise dispose of any shares of Common Stock of the ~~Company~~Company (other than dispositions of shares of Common Stock to the Company to pay any tax withholding obligations incurred by the undersigned in connection with (i) the issuance to the undersigned of Common Stock in payment of a portion of the undersigned’s salary, or (ii) the vesting of restricted shares of Common ~~Stock, par value $0.01 per share (~~Stock held by the ~~“Common Stock”)~~undersigned as of the date hereof) , or any options or warrants to purchase any shares of Common ~~Stock~~Stock of the Company, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common ~~Stock~~Stock of the Company, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (~~collectively~~ collectively, the “Undersigned's ’s Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction ~~that~~ which is designed to ~~result in,~~ or ~~that~~ which reasonably could be expected to lead ~~to,~~ to or result in a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to to, or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned ~~may, during the Lock-Up Period,~~ may transfer the Undersigned’s Shares (i) as a bona fide gift or ~~gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned~~gifts, provided ~~that~~ that, except in the case of charitable gifts, the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, partnership, limited liability company or other entity for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, provided that the ~~trustee of the trust~~ transferee agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) ~~above that such transfers are not required to be reported and are not voluntarily reported~~ with the ~~Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16~~ prior written consent of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up PeriodRepresentative. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. ~~As of the date hereof~~The undersigned now has, ~~the Undersigned’s Shares are not~~and, ~~and~~ except as contemplated by clause (i), (ii), or (iii) above, for the duration of this Lock-Up Agreement will have, good and marketable title to the Undersigned’s ~~Shares will not be~~Shares, ~~pledged~~free and clear of all liens, ~~hypothecated~~encumbrances, ~~or granted as collateral or security for any obligation~~and claims whatsoever. ~~[In addition, notwithstanding~~ The undersigned also agrees and consents to the ~~foregoing, during~~ entry of stop transfer instructions with the ~~Lock-Up Period,~~ Company’s transfer agent and registrar against the ~~undersigned may sell or otherwise dispose~~ transfer of the Undersigned’s Shares ~~for~~ except in compliance with the ~~purpose of raising proceeds to cover or otherwise satisfying~~ foregoing restrictions. The undersigned understands that the ~~reasonably estimated U.S. federal or state tax liability incurred by~~ Company and the ~~undersigned as a result of the vesting, during the~~ Underwriters are relying upon this Lock-Up ~~Period,~~ Agreement in proceeding toward consummation of ~~restricted shares of Common Stock outstanding on~~ the ~~date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided~~ offering. The undersigned further understands that ~~each such transfer shall occur on or about the time of such vesting~~ this Lock-Up Agreement is irrevocable and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of binding upon the undersigned’s ~~restricted shares~~ heirs, legal representatives, successors, and assigns. Very truly yours, ________________________________________ Exact Name of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Shareholder ________________________________________ Authorized Signature

Appears in 1 contract

Samples: Underwriting Agreement (Marshall & Ilsley Corp)

Research Analyst Independence. The Company and the ~~Selling Stockholder~~ Operating Company acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the ~~Selling Stockholder~~ Operating Company hereby waive and release, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the ~~Selling Stockholder~~ Operating Company by any Underwriter’s investment banking division. The Company and the ~~Selling Stockholder~~ Operating Company acknowledge that each of the Underwriters is a ~~full~~ full-service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature page follows.] Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the Company, the ~~Selling Stockholder~~ Operating Company, the Manager and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS~~JXXXXXXX CAPITAL, INC. By: /s/ ~~Xxxx~~ Jxxx X. ~~Xxxxxxx~~ Good Name: ~~Xxxx~~ Jxxx X. ~~Xxxxxxx~~ Good Title: ~~Executive Vice~~ President ~~of Finance~~ and Chief ~~Financial~~ Operating Officer ~~SELLING STOCKHOLDER~~JXXXXXXX CAPITAL OPERATING COMPANY, LLC By: ~~2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ Jxxxxxxx Capital, Inc., its managing member By: /s/ ~~Xxxxxxxx~~ Jxxx X. ~~Xxxxxx~~ Good Name: ~~Xxxxxxxx~~ Jxxx X. ~~Xxxxxx~~ Good Title: ~~Trustee~~ President and Chief Operating Officer JCAP ADVISORS, LLC By: /s/ Jxxx X. Good Name: Jxxx X. Good Title: President and Chief Operating Officer CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. ~~XXXXXX~~RXXXXXX JXXXX & ASSOCIATES, ~~XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. By: /s/ ~~Xxxxxxx Xxxxxx~~ Jxxxx Xxxxx Authorized Representative ~~XXXXX FARGO SECURITIES,~~ JXXXXXXXX LLC By: /s/ ~~Xxxxx~~ Jxxx Xxxxxx Authorized Representative ~~Xxxxx Xxxxxx - Director BB&T~~ KEYBANC CAPITAL ~~MARKETS, a division of BB&T SECURITIES, LLC~~ MARKETS INC. By: /s/ ~~Xxxxxxx X.~~ Rxxx Xxxxx Authorized Representative ~~Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule~~ SCHEDULE I Name Number ~~ofFirm~~ Firm Shares ~~Xxxxxx~~Rxxxxxx Jxxxx & Associates, ~~Xxxxxxxx~~ Inc. 1,400,000 Jxxxxxxxx LLC 1,000,000 KeyBanc Capital Markets Inc. 1,000,000 Rxxxxx X. Xxxxx & ~~Company~~Co., Incorporated ~~975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000~~ 600,000 Total: ~~3,250,000 Schedule II~~ 4,000,000 Issuer Free Writing ~~Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx~~ Prospectus None. Pricing Information Number of Firm Shares: ~~3,250,000~~ 4,000,000 Number of Additional Shares: ~~487,500~~ 600,000 Public Offering ~~Price~~Price per Share: $~~23.75~~ 18.50 Discount per ~~share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc.~~ Share: 4.5% SCHEDULE III Persons Subject to Lock-~~Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities~~up JCAP Advisors, LLC ~~BB&T Capital Markets, a division of BB&T Securities~~Dxxx Xxxxxxxx Mxxx X. Xxxxxx Hxxxxx X. Silver Hxxxx X. Xxxx W1 Capital, LLC ~~As Representatives of the Several Underwriters x/x Xxxxxx~~Jxxx X. Good Jxxxx Xxxxxxx Kxxxx X. Xxxxxxxx Jxxxxxxx X. Xxxxx Highland Capital Management Fund Advisors, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo SecuritiesL.P. NexPoint Real Estate Capital, LLC ~~and BB&T Capital Markets~~NexPoint Real Estate Opportunities, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).LLC

Appears in 1 contract

Samples: Underwriting Agreement (Jernigan Capital, Inc.)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by any Underwriter’s investment banking division. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ If the foregoing correctly sets forth the ~~agreement~~ understanding between the Underwriters and the Company, please so indicate in the ~~Selling Stockholder and the several Underwriters~~space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. Very truly yours, ~~HEARTLAND EXPRESS~~PEAK RESORTS, INC. ~~/s/ Xxxx X. Xxxxxxx~~ By: Name: ~~Xxxx X. Xxxxxxx~~ Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of Accepted on the date first above ~~mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto~~written. FBR CAPITAL MARKETS & CO. By: Name: Title: XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: ~~/s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By~~Name: ~~/s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By~~Title: ~~/s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division~~ For itself and as Representatives of ~~BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16~~ the other Underwriters named on Schedule I ~~Name~~ hereto. SCHEDULE I Underwriter Number ~~ofFirm~~ of Initial Shares to be Purchased FBR Capital Markets & Co. Xxxxxx, Xxxxxxxx & Company, Incorporated ~~975,000 Xxxxxxxx~~ Xxxxxx X. Xxxxx & Co. Incorporated Xxxxxx Xxxxxxxxxx Xxxxx LLC Xxxxxxxxxxx & Co. Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Total EXHIBIT A-1 Lock-Up Agreement ~~XXXXXX~~, ~~XXXXXXXX~~ 2014 FBR Capital Markets & ~~COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x~~ Co. Xxxxxx, Xxxxxxxx & Company, Incorporated ~~Xxx Xxxxx Xxxxxx,~~ c/o FBR Capital Markets & Co. 0000 00xx Xxxxxx Xxxxx Xxxxxxxxx, ~~Xxxxxxxx~~ XX 00000 ReAttn: ~~Heartland Express, Inc. - Lock-Up Agreement~~ Syndicate Department Ladies and Gentlemen: The ~~undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries,~~ undersigned understands that FBR Capital Markets & Co. and Xxxxxx, Xxxxxxxx & Company, ~~Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets~~Incorporated (the each, a ~~division of BB&T Securities, LLC (~~“Representative” and together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)) with Peak Resorts, ~~on behalf of the several Underwriters named in Schedule I to such agreement (collectively~~Inc., ~~the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ a Missouri corporation (the “~~Selling Stockholder~~Company”), providing for a the public offering (the “Public Offering”) by the Representatives of ~~Shares~~ shares of common stock (~~as defined in~~ “Firm Shares”), par value $0.01 per share, of the ~~Underwriting Agreement~~Company (the “Shares”). ~~In consideration of~~ To induce the ~~agreement by~~ Representatives to continue its efforts in connection with the ~~Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged~~Public Offering, the undersigned hereby agrees that, without the prior written consent of the Representatives, it will not, during the period ~~beginning~~ commencing on the date hereof and ending on ~~the date that is 90~~ 180 days ~~from~~ after the date of the final prospectus (the “Prospectus”) relating to the Public Offering (the “Lock-Up Period”), ~~the undersigned agrees that~~(1) offer, ~~without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer~~pledge, sell, contract to sell, ~~pledge~~grant, lend, ~~grant any option to purchase, make any short sale~~ or otherwise transfer or dispose of of, directly or indirectly, any ~~shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock,~~ Shares or any securities convertible ~~into,~~ into or exercisable or exchangeable for Shares, or ~~that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned~~ (~~including holding as a custodian~~2) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in enter into any ~~hedging~~ swap or other ~~transaction~~ arrangement that ~~is designed~~ transfers to ~~result in~~another, in whole or ~~that reasonably could be expected to lead to~~in part, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the ~~Undersigned’s~~ economic consequences of ownership of the Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Shares or ~~with respect to any security that includes~~such other securities, ~~relates to~~ in cash or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Sharesotherwise. Notwithstanding the foregoing, the undersigned ~~may, during~~ may transfer Shares without the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member prior consent of the ~~immediate family~~ Representatives in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the ~~undersigned~~Public Offering, provided that ~~the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii~~no filing under Section 16(a) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of Shares or other securities acquired in such open market transactions, (b) transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no ~~other public~~ filing ~~or report regarding such transfer~~ under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the Lock-Up up Period~~. For purposes~~ , (c) transfer of ~~this Lock-Up Agreement~~Shares to a charity or educational institution, ~~“immediate family” shall mean~~ or (d) if the undersigned, directly or indirectly, controls a corporation, partnership, limited liability company or other business entity, any ~~relationship by blood~~transfers of Shares to any shareholder, ~~marriage~~ partner or ~~adoption~~member of, ~~not more remote than first cousin. As~~ or owner of ~~the date hereof~~similar equity interests in, the ~~Undersigned’s Shares are not~~undersigned, ~~and for~~ as the ~~duration of this Lock-Up Agreement the Undersigned’s Shares will not~~ case may be, ~~pledged~~if, ~~hypothecated~~in any such case, ~~or granted as collateral or security~~ such transfer is not for ~~any obligation~~value. [In addition, ~~notwithstanding~~ the ~~foregoing,~~ undersigned agrees that during the Lock-Up Period, without the ~~undersigned may sell or otherwise dispose~~ prior written consent of the ~~Undersigned~~Representatives, it will not make any demand for or exercise any right with respect to the registration of any Shares or any security convertible into or exercisable or exchangeable for Shares. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares ~~for~~ except in compliance with this Agreement. No provision in this agreement shall be deemed to restrict or prohibit the ~~purpose of raising proceeds to cover~~ exercise or ~~otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred~~ exchange by the undersigned ~~as a result~~ of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares, provided that the ~~vesting,~~ undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up Period, unless otherwise permitted pursuant to the terms of ~~restricted~~ this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a so-called “10b5-1” plan at any time (other than the entry into or modification of such a plan in such a manner as to cause the sale of any Shares or any securities convertible into or exercisable or exchangeable for Shares within the Lock-Up Period). The undersigned understands that the Company and the Representatives are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by March 31, 2015, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Representatives. Very truly yours, (Name): (Address) EXHIBIT A-2 Lock-Up Agreement , 2014 FBR Capital Markets & Co. Xxxxxx, Xxxxxxxx & Company, Incorporated c/o FBR Capital Markets & Co. 0000 00xx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000 Attn: Syndicate Department The undersigned understands that FBR Capital Markets & Co. and Xxxxxx, Xxxxxxxx & Company, Incorporated (the each, a “Representative” and together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Peak Resorts, Inc., a Missouri corporation (the “Company”), providing for the public offering (the “Public Offering”) by the Representatives of shares of ~~Common Stock outstanding~~ common stock (“Firm Shares”), par value $0.01 per share, of the Company (the “Shares”). To induce the Representatives to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of the Representatives, it will not, during the period commencing on the date hereof ~~pursuant~~ and ending 180 days after the date of the final prospectus (the “Prospectus”) relating to ~~stock plans disclosed~~ the Public Offering (the “Lock-Up Period”), (1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any Shares or any securities convertible into or exercisable or exchangeable for Shares, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the ~~Time~~ economic consequences of ~~Sale Information~~ ownership of the Shares, whether any such transaction described in clause (~~as defined~~ 1) or (2) above is to be settled by delivery of Shares or such other securities, in cash or otherwise. Notwithstanding the ~~Underwriting Agreement)~~foregoing, the undersigned may transfer Shares without the prior consent of the Representatives in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the Public Offering, provided that ~~each such transfer shall occur on or about~~ no filing under Section 16(a) of the ~~time~~ Securities Exchange Act of ~~such vesting and~~ 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of ~~an amount of the Undersigned’s~~ Shares ~~that raises gross proceeds that~~or other securities acquired in such open market transactions, ~~as nearly as reasonably practicable, approximate such tax liability, and provided further that~~ (b) if the undersigned is ~~required~~ an individual, transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to ~~make~~ a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no filing under Section 16(a) of the Exchange ~~Act~~ Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the ~~Undersigned~~Lock-up Period, (c) transfer of Shares to a charity or educational institution, (d) if the undersigned is, or directly or indirectly controls, a corporation, partnership, limited liability company or other business entity, any transfers of Shares to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned, as the case may be, if, in any such case, such transfer is not for value, or (e) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer of Shares made by the undersigned (i) in connection with the sale or other bona fide transfer in a single transaction of all or substantially all of the undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigned’s assets, in any such case not undertaken for the purpose of avoiding the restrictions imposed by this agreement or (ii) to another corporation, partnership, limited liability company or other business entity so long as the transferee is an affiliate of the undersigned and such transfer is not for value. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares except in compliance with this Agreement. No provision in this agreement shall be deemed to restrict or prohibit the exercise or exchange by the undersigned of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares, provided that the undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up ~~Period as~~ Period, unless otherwise permitted pursuant to the terms of this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a ~~result~~ so-called “10b5-1” plan at any time (other than the entry into or modification of such ~~sale or disposition, the undersigned shall include~~ a ~~statement~~ plan in such ~~report~~ a manner as to cause the ~~effect~~ sale of any Shares or any securities convertible into or exercisable or exchangeable for Shares within the Lock-Up Period). The undersigned understands that the ~~purpose of such sale or other disposition was to cover tax obligations~~ Company and the Representatives are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned ~~in connection with the vesting of~~ further understands that this agreement is irrevocable and shall be binding upon the undersigned’s ~~restricted shares~~ heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by March 31, 2015, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of ~~Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx~~the Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, ~~who serves as trustee~~ including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of ~~several GRATs established by his mother~~which are subject to negotiation between the Company and the Representatives. Very truly yours, ~~Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would~~ (Name): (Address) ANNEX 1 Subsidiaries ANNEX 2 Initial Properties [To be ~~covered by clause (ii).~~updated] Hidden Valley Snow Creek Boston Xxxxx Brandywine Paoli Peaks Attitash Mount Snow Wildcat Mountain Mad River Crotched Mountain Xxxx Xxxxx Big Boulder

Appears in 1 contract

Samples: Underwriting Agreement (Peak Resorts Inc)

Appears in 1 contract

Samples: Underwriting Agreement (Byrna Technologies Inc.)

Research Analyst Independence. The Company ~~and the Selling Stockholder~~ acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by any Underwriter’s investment banking division. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the ~~Company, the Selling Stockholder~~ Company and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS,~~ PLX PHARMA INC. ~~/s/ Xxxx X. Xxxxxxx~~ By: Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee Title CONFIRMED as of the date first above mentioned, on behalf of the ~~Representatives~~ Representative and the other several Underwriters named in Schedule I hereto. ~~XXXXXX~~RXXXXXX JXXXX & ASSOCIATES, ~~XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. By: ~~/s/ Xxxxxxx Xxxxxx~~ Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Number Name ~~Number ofFirm~~ Firm Shares ~~Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000~~ Total: ~~3,250,000 Schedule~~ SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Prospectus - 33 - SCHEDULE III Persons Subject to Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).up

Appears in 1 contract

Samples: Underwriting Agreement (PLX Pharma Inc.)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that ~~(a) the Underwriters’~~ X.X. Xxxxxx’x research analysts and research ~~departments~~ department are required to be independent from ~~their respective~~ the investment banking ~~divisions~~ division and are subject to certain regulations and internal ~~policies~~ policies, and ~~(b) the Underwriters’~~ that X.X. Xxxxxx’x research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the ~~Company, the value of the Common Stock~~ Company and/or the offering that differ from the views of ~~their respective~~ the investment banking ~~divisions~~division. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ the Company may have against ~~the Underwriters~~ X.X. Xxxxxx with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by ~~the Underwriters’~~ its independent research analysts and research departments may be different from or inconsistent with the views or ~~advice~~ advise communicated to the Company ~~or the Selling Stockholder~~ by ~~any Underwriter’s~~ X.X. Xxxxxx’x investment banking ~~division~~divisions. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that ~~each of the Underwriters~~ X.X. Xxxxxx is a full service securities firm and as ~~such,~~ such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that ~~are~~ may be the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ [Signature Page Follows.] If the foregoing ~~correctly sets forth~~ is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between ~~the Company~~X.X. Xxxxxx, the ~~Selling Stockholder~~ Company and the ~~several Underwriters~~Partnership in accordance with its terms. Very truly yours, ~~HEARTLAND EXPRESS~~PARKWAY PROPERTIES, INC. By /s/ ~~Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009~~ Xxxxxx ~~Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx~~ X. Xxxxxx Name: ~~Xxxxxxxx~~ Xxxxxx X. Xxxxxx Title: ~~Trustee~~ President and CEO PARKWAY PROPERTIES LP By: Parkway Properties General Partners, Inc., its sole general partner By /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx Title: President and CEO CONFIRMED AND ACCEPTED, as of the date first above ~~mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto~~written: X.X. XXXXXX SECURITIES INC. ~~XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By:~~ By /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized ~~Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares~~ Signatory EXHIBIT C COMPENSATION X.X. Xxxxxx Securities Inc. (“X.X. Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives ”) shall be paid compensation equal to 2% of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director gross proceeds from the sales of ~~Heartland Express, Inc., a Nevada corporation (~~Securities pursuant to the ~~“Company”), or one~~ terms of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting this Agreement (the “~~Underwriting Agreement~~Base Commission”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).

Appears in 1 contract

Samples: Equity Distribution Agreement (Parkway Properties Inc)

Appears in 1 contract

Samples: Underwriting Agreement (Adma Biologics, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Asterias Biotherapeutics, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Invivo Therapeutics Holdings Corp.)

Appears in 1 contract

Samples: Underwriting Agreement (Adamis Pharmaceuticals Corp)

Research Analyst Independence. ~~The~~ Each of the Company and the Selling ~~Stockholder acknowledge~~ Shareholders acknowledges that ~~(a)~~ the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal ~~policies~~ policies, and ~~(b) the~~ that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the ~~Company, the value of the Common Stock~~ Company and/or the offering that differ from the views of their respective investment banking divisions. ~~The~~ Each of the Company and the Selling ~~Stockholder~~ Shareholders hereby ~~waive~~ waives and ~~release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ the Company and the Selling Shareholders may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by ~~the Underwriters’~~ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the Selling ~~Stockholder~~ Shareholders by ~~any Underwriter’s~~ such Underwriters’ investment banking ~~division~~divisions. ~~The~~ Each of the Company and the Selling ~~Stockholder acknowledge~~ Shareholders acknowledges that each of the Underwriters is a full service securities firm and as ~~such,~~ such from time to time, subject to applicable securities laws, may effect transactions for its own account or for the account of its customers and hold long or short positions in debt or equity securities of the ~~companies that are~~ Company. If the ~~subject~~ foregoing is in accordance with your understanding, please sign and return to us six counterparts hereof, and upon the acceptance hereof by you this letter and such acceptance hereof shall constitute a binding agreement among each of the ~~transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between the Company~~Underwriters, the ~~Selling Stockholder~~ Company and the ~~several Underwriters~~Selling Shareholders. Very truly yours, ~~HEARTLAND EXPRESS~~THE ANDERSONS, INC. By: /s/ ~~Xxxx X. Xxxxxxx~~ Naran Burchinow Name: ~~Xxxx X. Xxxxxxx~~ Naran Burchinow Title: ~~Executive~~ Vice President ~~of Finance and Chief Financial Officer~~ SELLING ~~STOCKHOLDER~~SHAREHOLDERS: ~~2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/~~ Mxxxxxx X. Xxxxxxxx Rxxxxxx X. Xxxxxxxx Rxxxxxx X. Xxxxxxxx LLC Cxxxx X. Xxxxx Pxxx X. Xxxxx Dxxx X. Xxxxxx Rxxxxxx X. Xxxxxx Gxxx X. Xxxxx By: /s/ Naran Burchinow Name: ~~Xxxxxxxx X. Xxxxxx~~ Naran Burchinow Title: ~~Trustee CONFIRMED~~ Attorney-in-Fact Accepted as of the date first ~~above mentioned~~above: BB&T CAPITAL MARKETS, on a Division of Sxxxx & Sxxxxxxxxxxx, Inc. By: /s/ Jxxxx X. Xxxxx, Xx. Name: Jxxxx X. Xxxxx, Xx. Title: Senior Vice President PXXXX XXXXXXX & CO. By: /s/ Cxxxxxxx X. Cxxxxxxxx Name: Cxxxxxxx X. Cxxxxxxxx Title: Principal On behalf of ~~the Representatives~~ themselves and the other ~~several~~ Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I ~~Name Number ofFirm~~ Optional Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Purchased if Maximum Firm Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Option

Appears in 1 contract

Samples: Underwriting Agreement (Andersons Inc)

Appears in 1 contract

Samples: Underwriting Agreement (CatchMark Timber Trust, Inc.)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that ~~(a) the Underwriters’~~ each Underwriter’s research analysts and research ~~departments~~ departments, if any, are required to be independent from ~~their respective~~ its investment banking ~~divisions~~ division and are subject to certain regulations and internal ~~policies~~ policies, and ~~(b) the Underwriters’~~ that such Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the ~~Company, the value of the Common Stock~~ Company and/or the ~~offering~~ Offering that differ from the views of their respective investment banking divisions. The Company and the Selling Stockholder hereby waive and release, to the fullest extent permitted by law, any claims that they may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholder by any Underwriter’s investment banking division. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each ~~of the Underwriters~~ Underwriter is a full service securities firm and as ~~such,~~ such from time to time, subject to applicable securities laws, rules and regulations, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the ~~companies~~ Company; provided, however, that ~~are~~ nothing in this Section 9.9 shall relieve the ~~subject~~ Underwriter of ~~the transactions contemplated by this Agreement~~any responsibility or liability it may otherwise bear in connection with activities in violation of applicable securities laws, rules or regulations. ~~Please confirm that~~ If the foregoing correctly sets forth the ~~agreement~~ understanding between the Underwriters and the Company, please so indicate in the ~~Selling Stockholder and the several Underwriters~~space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. Very truly yours, ~~HEARTLAND EXPRESS~~HARBOR CUSTOM DEVELOPMENT, INC. By: /s/ ~~Xxxx X.~~ Sxxxxxxx Xxxxxxx Name: ~~Xxxx X.~~ Sxxxxxxx Xxxxxxx Title: Chief Executive ~~Vice President~~ Officer, President, and Chairman of ~~Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED~~ the Board of Directors Confirmed as of the date first written above mentioned, on behalf of itself and as Representative of the ~~Representatives and the other~~ several Underwriters named in on Schedule I 1 hereto~~. XXXXXX~~: ThinkEquity A division of Fordham Financial Management, ~~XXXXXXXX & COMPANY, INCORPORATED~~ Inc. By: /s/ ~~Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC~~Priyanka Mahajan Name: Priyanka Mahajan Title: Managing Director, Investment Banking [signature page] harbor custom development, inc. ~~By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx~~ - ~~Director BB&T CAPITAL MARKETS~~underwriting agreement SCHEDULE 1 Underwriter Total Number of Firm Shares to be Purchased Total Number of Firm Warrants to be Purchased Number of Option Shares to be Purchased if the Over- Allotment Option is Fully Exercised Number of Option Warrants to be Purchased if the Over-Allotment Option is Fully Exercised ThinkEquity, a division of ~~BB&T SECURITIES~~Fordham Financial Management, ~~LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx~~ Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx 1,200,000 3,600,000 180,000 540,000 TOTAL 1,200,000 3,600,000 180,000 540,000 Sch. 1 -1 SCHEDULE 2-A Pricing Information Number of Firm Shares: ~~3,250,000~~ 1,200,000 Number of ~~Additional~~ Firm Warrants: 3,600,000 Number of Option Shares: ~~487,500~~ 180,000 Number of Option Warrants: 540,000 Public Offering ~~Price~~Price per one Firm Share and three Firm Warrants: $~~23.75~~ 25.00 Underwriting Discount per ~~share~~ one Share and three Warrants: $1.75 ($1.7479 per Share and $0.0007 per Warrant) Proceeds to Company per one Share and three Warrants (before expenses): $23.25 SCHEDULE 2-B Issuer General Use Free Writing Prospectuses SCHEDULE 2-C Written Testing-the-Waters Communications None. Sch. 2 -1 SCHEDULE 3 List of ~~Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc.~~ Lock-Up Parties Sxxxxxxx Xxxxxxx Lxxxx Xxxxxxx Rxxxxxx Xxxxxxxxx Axxxx Xxxxx Jxxxxxx Xxxxxxxxxxx Rxxx Xxxxxx Lxxxx Xxxxx Wxxxx Xxxxxx Dxxxxx Xxxx The Gxxxxxx Investment Trust Kxxxx Xxxxxx EXHIBIT A-1 Form of Underwriter’s Warrant Agreement ~~XXXXXX~~(8.0% Cumulative Convertible Series A Preferred Stock) THE REGISTERED HOLDER OF THIS UNDERWRITER’S WARRANT BY ITS ACCEPTANCE HEREOF, ~~XXXXXXXX &~~ AGREES THAT THIS UNDERWRITER’S WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED, OR BE THE SUBJECT OF ANY HEDGING, SHORT SALE, DERIVATIVE, PUT, OR CALL TRANSACTION THAT WOULD RESULT IN THE EFFECTIVE ECONOMIC DISPOSITION OF SUCH SECURITIES BY ANY PERSON FOR A PERIOD OF ONE HUNDRED AND EIGHTY (180) DAYS IMMEDIATELY FOLLOWING THE DATE OF EFFECTIVENESS OF THE PUBLIC OFFERING OF THE COMPANY’S SECURITIES PURSUANT TO REGISTRATION STATEMENT NO. 333-255229 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION, ~~INCORPORATED XXXXXXXX~~ EXCEPT IN ACCORDANCE WITH FINRA RULE 5110(e)(2). THIS UNDERWRITER’S WARRANT IS NOT EXERCISABLE PRIOR TO December 6, 2021. VOID AFTER 5:00 P.M., EASTERN TIME, June 9, 2026. UNDERWRITER’S WARRANT TO PURCHASE 8.0% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK HARBOR CUSTOM DEVELOPMENT, INC. ~~Xxxxx Fargo Securities~~Warrant Shares: 12,000 Initial Exercise Date: December 6, ~~LLC BB&T Capital Markets~~2021 THIS UNDERWRITER’S WARRANT TO PURCHASE 8.0% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK (the “Underwriter’s Warrant”) certifies that, for value received, ThinkEquity, a division of ~~BB&T Securities~~Fordham Financial Management, ~~LLC As Representatives of~~ Inc., or its assigns (the ~~Several Underwriters x/x Xxxxxx~~“Holder”), ~~Xxxxxxxx & Company~~is entitled, ~~Incorporated Xxx Xxxxx Xxxxxx~~upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, ~~00xx Xxxxx Xxxxxxxxx~~at any time on or after December 6, ~~Xxxxxxxx 00000 Re: Heartland Express~~2021 (the “Initial Exercise Date”) and, ~~Inc. - Lock-Up Agreement Ladies~~ in accordance with FINRA Rule 5110(g)(8)(A), prior to at 5:00 p.m. (New York time) on the date that is five (5) years following the Effective Date (the “Termination Date”) but not thereafter, to subscribe for and ~~Gentlemen: The undersigned, an officer and/or director of Heartland Express~~purchase from Harbor Custom Development, Inc., a ~~Nevada~~ Washington corporation (the “Company”), ~~or one~~ up to 12,000 shares of ~~its subsidiaries~~8.0% Series A Cumulative Convertible Preferred Stock, ~~understands that Xxxxxx~~no par value per share, ~~Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division~~ of ~~BB&T Securities, LLC (together,~~ the ~~“Representatives”) propose to enter into an Underwriting Agreement~~ Company (the “~~Underwriting Agreement~~Warrant Shares”), ~~on behalf~~ as subject to adjustment hereunder. The purchase price of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) one share of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating 8.0% Series A Cumulative Convertible Preferred Stock under this Underwriter’s Warrant shall be equal to the ~~Public Offering (the “Lock-Up Period”)~~Exercise Price, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii2(b).

Appears in 1 contract

Samples: Underwriting Agreement (Harbor Custom Development, Inc.)

Appears in 1 contract

Samples: Malibu Boats, Inc.

Research Analyst Independence. The Company and the Selling ~~Stockholder~~ Stockholders acknowledge that (a) the ~~Underwriters’~~ Underwriter’s research analysts and research departments are required to be independent from ~~their respective~~ its investment banking divisions and are subject to certain regulations and internal policies and (b) the ~~Underwriters’~~ Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the ~~Common Stock~~ Shares and/or the offering that differ from the views of ~~their respective~~ its investment banking divisions. The Company and the Selling ~~Stockholder~~ Stockholders each hereby ~~waive~~ waives and ~~release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the ~~Underwriters~~ Underwriter with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the ~~Underwriters’~~ Underwriter’s independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and/or the Selling ~~Stockholder~~ Stockholders by ~~any~~ the Underwriter’s investment banking division. The Company and the Selling ~~Stockholder~~ Stockholders each acknowledge that ~~each of~~ the ~~Underwriters~~ Underwriter is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the Company, the Selling ~~Stockholder~~ Stockholders and the ~~several Underwriters~~Underwriter. Very truly yours, ~~HEARTLAND EXPRESS~~HEALTH INSURANCE INNOVATIONS, INC. /s/ ~~Xxxx X.~~ Xxxxxxx ~~Name: Xxxx X.~~ Xxxxxxxxxxx Xxxxxxx ~~Title: Executive~~ Xxxxxxxxxxx, Interim Chief Financial Officer and Senior Vice President of Finance and ~~Chief Financial Officer~~ Business Development THE SELLING ~~STOCKHOLDER~~STOCKHOLDERS Health Plan Intermediaries, LLC By: ~~2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ /s/ Xxxxxxx X. Xxxxxxxx ~~X. Xxxxxx~~ Name: Xxxxxxx X. Xxxxxxxx ~~X. Xxxxxx~~ Title: ~~Trustee~~ CEO Health Plan Intermediaries Sub, LLC By: Health Plan Intermediaries, LLC By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: CEO CONFIRMED as of the date first above mentioned. XXXXXXX XXXXX & ASSOCIATES, ~~on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. ~~By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC~~ By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose Signature Page to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement~~). In consideration~~ ] SCHEDULE I Schedule of ~~the agreement by the Underwriters to offer and sell the Shares~~Selling Stockholders Stockholder Number of Shares Health Plan Intermediaries, ~~and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged~~LLC 1,707,549 Health Plan Intermediaries Sub, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).LLC 17,451 SCHEDULE II

Appears in 1 contract

Samples: Health Insurance Innovations, Inc.

Research Analyst Independence. The Company ~~and~~ acknowledges that the ~~Selling Stockholder acknowledge that (a) the Underwriters~~Initial Purchasers’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal ~~policies~~ policies, and ~~(b) the Underwriters~~that such Initial Purchasers’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the ~~Company, the value of the Common Stock~~ Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ the Company may have against the ~~Underwriters~~ Initial Purchasers with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by ~~the Underwriters’~~ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by ~~any Underwriter’s~~ such Initial Purchasers’ investment banking ~~division~~divisions. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the ~~Underwriters~~ Initial Purchasers is a full service securities firm and as ~~such,~~ such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that ~~are~~ may be the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ If the foregoing ~~correctly sets forth~~ is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the ~~agreement between the Company, the Selling Stockholder and the several Underwriters~~space provided below. Very truly yours, HEARTLAND EXPRESS, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX ATP OIL & ~~COMPANY, INCORPORATED~~ GAS CORPORATION By: /s/ ~~Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: President Accepted: April 19, 2010 X.X. XXXXXX SECURITIES INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies For itself and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several ~~Underwriters named~~ Initial Purchasers listed in Schedule ~~I to such agreement~~ 1 hereto. By: /s/ Xxxx X. Xxxxx Authorized Signatory Schedule 1 Initial Purchaser Principal Amount X.X. Xxxxxx Securities Inc. 798,600,000 Credit Suisse Securities (~~collectively~~USA) LLC 637,500,000 Natixis Bleichroeder LLC 45,000,000 Xxxxxx & Xxxxxxx, ~~the “Underwriters”)~~LLC 15,000,000 Global Hunter Securities, ~~with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing~~ LLC 3,900,000 Total 1,500,000,000 Annex A [Form of Opinion of Counsel for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).]

Appears in 1 contract

Samples: Registration Rights Agreement (Atp Oil & Gas Corp)

Appears in 1 contract

Samples: Underwriting Agreement (CatchMark Timber Trust, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Volitionrx LTD)

Appears in 1 contract

Samples: Underwriting Agreement (Adma Biologics, Inc.)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that ~~(a)~~ the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal ~~policies~~ policies, and ~~(b) the~~ that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the ~~Company, the value of the Common Stock~~ Company and/or the ~~offering~~ Offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by applicable law, any claims that ~~they~~ the Company may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by ~~the Underwriters’~~ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by ~~any Underwriter’s~~ such Underwriters’ investment banking ~~division~~divisions. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as ~~such,~~ such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that ~~are~~ may be the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ [Signature Pages Follow] If the foregoing Underwriting Agreement correctly sets forth the ~~agreement between~~ understanding among the ~~Company, the Selling Stockholder~~ Company and the ~~several~~ Underwriters, please so indicate in the space provided below for the purpose, whereupon this letter and your acceptance shall constitute a binding agreement among the Company and the Underwriters. ~~Very truly yours, HEARTLAND EXPRESS,~~ HOLLYFRONTIER CORPORATION By: /s/ Xxxxxxx X. Xxxx Name: Xxxxxxx X. Xxxx Title: Vice President and Treasurer Confirmed and accepted as of the date first above written: By: CITIGROUP GLOBAL MARKETS INC. as a Representative of the several Underwriters By: /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: ~~Executive~~ Vice President ~~of Finance and Chief Financial Officer SELLING STOCKHOLDER~~By: ~~2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED~~ XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED as a Representative of the ~~date first above mentioned, on behalf of the Representatives and the other~~ several Underwriters ~~named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED~~ By: /s/ Xxxxx ~~Xxxxxxx Authorized Representative XXXXXXXX~~ Xxxxxx Name: Xxxxx Xxxxxx Title: Managing Director By: MITSUBISHI UFJ SECURITIES (USA), INC. as a Representative of the several Underwriters By: /s/ Xxxxxxx Xxxxx Name: Xxxxxxx Xxxxx Title: Managing Director By: XXXXX FARGO SECURITIES, LLC as a Representative of the several Underwriters By: /s/ Xxxxxxx Xxxxxx ~~Authorized Representative XXXXX FARGO SECURITIES, LLC By~~Name: ~~/s/ Xxxxx~~ Xxxxxxx Xxxxxx ~~Authorized Representative Xxxxx Xxxxxx -~~ Title: Director ~~BB&T CAPITAL MARKETS, a division~~ ANNEX A List of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II each Issuer General Use Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Prospectus

Appears in 1 contract

Samples: HollyFrontier Corp

Appears in 1 contract

Samples: Underwriting Agreement (Federated National Holding Co)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that (ai) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (bii) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by any Underwriter’s investment banking division. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the ~~Company, the Selling Stockholder~~ Company and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS~~BIOTIME, INC. By: /s/ ~~Xxxx X.~~ Xxxxxxx Xxxxxxxx Name: ~~Xxxx X.~~ Xxxxxxx Xxxxxxxx Title: ~~Executive Vice President of Finance and~~ Chief Financial Officer ~~SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee~~ CONFIRMED as of the date first above mentioned, on behalf of the ~~Representatives~~ Representative and the other several Underwriters named in Schedule I hereto. ~~XXXXXX~~XXXXXXX XXXXX & ASSOCIATES, ~~XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. By: /s/ ~~Xxxxxxx~~ Xx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ~~ofFirm~~ Firm Shares ~~Xxxxxx~~Xxxxxxx Xxxxx & Associates, Inc. 4,537,038 Ladenburg Xxxxxxxx & ~~Company, Incorporated 975,000 Xxxxxxxx~~ Co. Inc. ~~975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T~~ 1,296,296 Chardan Capital Markets, ~~a division of BB&T Securities~~LLC 324,074 LifeSci Capital, LLC ~~650,000~~ 324,074 Total: ~~3,250,000 Schedule~~ 6,481,482 - 35 - SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressProspectus None. SCHEDULE III Persons Subject to Lock-up Xxxx Xxxxxxxx Xxx Xxxxxxx Xxxxxxx X. Xxxx Xxxxxxx Xxxxxxxx Xxxxxxxx Xxxxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxxx Xxx Xxxxxxxxx Xxx Xxxxxx Xxxxxx X. Xxxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx X. Xxxxxxx Xxxxxxx Xxxxxx Xxxxx X. Xxxxxxx Xxxxx Xxxxxxxxx Greenbelt Corp. Greenway Partners, L.P. Broadwood Capital, Inc. Broadwood Partners, L.P. EXHIBIT A - 38 - Form of Lock-Up up Agreement ~~XXXXXX~~_______, ~~XXXXXXXX~~ 2017 BioTime, Inc. 0000 Xxxxxxxx Xxxxxx, #000 Xxxxxxx, Xxxxxxxxxx 00000 XXXXXXX XXXXX & ~~COMPANY~~ASSOCIATES, ~~INCORPORATED XXXXXXXX~~ INC. ~~Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC~~ As ~~Representatives~~ Representative of the Several Underwriters xc/~~x Xxxxxx~~o Raymond Xxxxx & Associates, Inc. 000 Xxxxxxxx ~~& Company~~Xxxxxxx Xx. Xxxxxxxxxx, ~~Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx~~ XX 00000 Re: ~~Heartland Express~~BioTime, Inc. ~~- Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation~~ (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, ) - Restriction on Stock Sales Dear Sirs: This letter is delivered to you pursuant to the ~~“Representatives”) propose to enter into an~~ Underwriting Agreement (the “Underwriting Agreement”)) to be entered into by the Company, ~~on behalf~~ as issuer, and Xxxxxxx Xxxxx & Associates, Inc., the representative (the “Representative”) of ~~the several Underwriters named in Schedule I to such agreement~~ certain underwriters (~~collectively,~~ the “Underwriters”)) to be named therein. Upon the terms and subject to the conditions of the Underwriting Agreement, ~~with~~ the Underwriters intend to effect a public offering of Common Stock, no par value per share, of the Company ~~and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ (the “~~Selling Stockholder~~Shares”), ~~providing for a public offering~~ as described in and contemplated by the registration statement of the Company on Form S-3, File No. 333-201824 (the “~~Public~~ Registration Statement”), as filed with the Securities and Exchange Commission on February 2, 2015 (the “Offering”) ). The undersigned recognizes that it is in the best financial interests of ~~Shares~~ the undersigned, as an officer or director, or an owner of stock, options, warrants or other securities of the Company (the “Company Securities”), that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or may be, subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as ~~defined in~~ an inducement to the Underwriters to execute the Underwriting Agreement~~). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged~~, the undersigned hereby acknowledges and agrees ~~that, during the period beginning on the date hereof and ending on the date~~ that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not (i) offer, sell, contract to sell, pledge, ~~lend,~~ grant any option to ~~purchase, make any short sale~~ purchase or otherwise dispose of (collectively, a “Disposition”) any ~~shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock~~Company Securities, or any securities convertible ~~into~~into or exercisable or exchangeable for, ~~exchangeable for~~ or any rights to purchase or otherwise acquire, any Company Securities held by the undersigned or acquired by the undersigned after the date hereof, or that ~~represent the right~~ may be deemed to ~~receive shares of Common Stock, whether now~~ be beneficially owned ~~or hereinafter acquired, owned directly~~ by the undersigned (~~including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively~~ collectively, the “~~Undersigned's~~ Lock-Up Shares”)~~. The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in~~, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession pursuant to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, Rules and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 Regulations promulgated under the Securities Act of 1933, as amended (the “~~Securities~~ Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), for a period commencing on the date hereof and no ending 90 days after the date of the final prospectus supplement filed pursuant to Rule 424(b) under the Act relating to the Offering, inclusive (the “Lock-Up Period”), without the prior written consent of the Representative or (ii) exercise or seek to exercise or effectuate in any manner any rights of any nature that the undersigned has or may have hereafter to require the Company to register under the Act the undersigned’s sale, transfer or other ~~public filing~~ disposition of any of the Lock-Up Shares or ~~report regarding such transfer shall be required~~ other securities of the Company held by the undersigned, or ~~shall be voluntarily made~~ to otherwise participate as a selling securityholder in any manner in any registration effected by the Company under the Act, including under the Registration Statement, during the Lock-Up Period. ~~For purposes~~ The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging, collar (whether or not for any consideration) or other transaction that is designed to or reasonably expected to lead or result in a Disposition of ~~this~~ Lock-Up ~~Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s~~ Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, even if such Lock-Up Shares would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include any short sale or any purchase, sale or grant of any right (including any put or call option or reversal or cancellation thereof) with respect to any Lock-Up Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Lock-Up Shares. Notwithstanding the ~~undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds~~ agreement not to ~~cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting,~~ make any Disposition during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect you have agreed that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).foregoing restrictions shall not apply to:

Appears in 1 contract

Samples: Underwriting Agreement (Biotime Inc)

Appears in 1 contract

Samples: Underwriting Agreement (Adamis Pharmaceuticals Corp)

Appears in 1 contract

Samples: Underwriting Agreement (Federated National Holding Co)

Appears in 1 contract

Samples: Underwriting Agreement (Adamis Pharmaceuticals Corp)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or by the ~~Selling Stockholder by any Underwriter’s~~ Underwriters’ investment banking division. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ If the foregoing correctly sets forth the ~~agreement~~ understanding between the Underwriters and the Company, please so indicate in the ~~Selling Stockholder and the several Underwriters~~space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. Very truly yours, ~~HEARTLAND EXPRESS~~ECO-STIM ENERGY SOLUTIONS, INC. ~~/s/ Xxxx X. Xxxxxxx~~ By: Name: ~~Xxxx X.~~ J. Cxxxx Xxxxxxx Title: ~~Executive Vice~~ President ~~of Finance~~ and ~~Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of~~ CEO Accepted on the date first above ~~mentioned~~written. FBR Capital Markets & Co. By: Name: Title: Rxxx Capital Partners, ~~on behalf~~ LLC By: Name: Title: For itself and as Representatives of the ~~Representatives and the~~ other ~~several~~ Underwriters named in on Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Underwriter Number of Firm ~~Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit~~ Shares to be Purchased FBR Capital Markets & Co. Rxxx Capital Partners, LLC Seaport Global Securities LLC Total Schedule I EXHIBIT A ~~[SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc.~~ Lock-Up Agreement ~~XXXXXX~~_____________, ~~XXXXXXXX~~ 201_ FBR Capital Markets & ~~COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities~~Co. Rxxx Capital Partners, LLC ~~BB&T~~ c/o FBR Capital ~~Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx~~ Markets & ~~Company, Incorporated Xxx Xxxxx Xxxxxx,~~ Co. 1000 00xx Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 ReAttn: ~~Heartland Express~~[●] c/o Roth Capital Partners, ~~Inc. - Lock-Up Agreement~~ LLC 800 Xxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxx, XX 00000 Attn: Managing Director Ladies and Gentlemen: The ~~undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries,~~ undersigned understands that ~~Xxxxxx, Xxxxxxxx~~ FBR Capital Markets & ~~Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC~~ Co. and ~~BB&T~~ Rxxx Capital ~~Markets, a division of BB&T Securities~~Partners, LLC (each a “Representative” and together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)) with Eco-Stim Energy Solutions, ~~on behalf of the several Underwriters named in Schedule I to such agreement (collectively~~Inc., ~~the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ a Nevada corporation (the “~~Selling Stockholder~~Company”), providing for a the public offering (the “Public Offering”) ~~of Shares (as defined in the Underwriting Agreement). In consideration of the agreement~~ by the Underwriters named on Schedule I thereto (the “Underwriters”) of __________ shares of common stock (“Firm Shares”), par value $0.001 per share, of the Company (the “Shares”). To induce the Representatives to ~~offer and sell~~ continue its efforts in connection with the ~~Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged~~Public Offering, the undersigned hereby agrees that, without the prior written consent of the Representatives, it will not, during the period ~~beginning~~ commencing on the date hereof and ending ~~on the date that is~~ 90 days ~~from~~ after the date of the final prospectus (the “Prospectus”) relating to the Public Offering (the “Lock-Up Period”), ~~the undersigned agrees that~~(1) offer, ~~without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer~~pledge, sell, contract to sell, ~~pledge~~grant, lend, ~~grant any option to purchase, make any short sale~~ or otherwise transfer or dispose of of, directly or indirectly, any ~~shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock,~~ Shares or any securities convertible ~~into,~~ into or exercisable or exchangeable for Shares, or ~~that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned~~ (~~including holding as a custodian~~2) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in enter into any ~~hedging~~ swap or other ~~transaction~~ arrangement that ~~is designed~~ transfers to ~~result in~~another, in whole or ~~that reasonably could be expected to lead to~~in part, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the ~~Undersigned’s~~ economic consequences of ownership of the Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Shares or ~~with respect to any security that includes~~such other securities, ~~relates to~~ in cash or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Sharesotherwise. Notwithstanding the foregoing, the undersigned ~~may, during~~ may transfer Shares without the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member prior consent of the ~~immediate family~~ Representatives in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the ~~undersigned~~Public Offering; provided that, ~~provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii~~no filing under Section 16(a) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of Shares or other securities acquired in such open market transactions, (b) if the undersigned is an individual, transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of a family member; provided that, in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no ~~other public~~ filing ~~or report regarding such transfer~~ under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the Lock-Up up Period~~. For purposes~~ , (c) transfer of ~~this Lock-Up Agreement~~Shares to a charity or educational institution, ~~“immediate family” shall mean~~ (d) if the undersigned is, or directly or indirectly controls, a corporation, partnership, limited liability company or other business entity, any ~~relationship~~ transfers of Shares to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned, as the case may be, if, in any such case, such transfer is not for value, (e) Shares disposed of to satisfy federal income tax and tax withholding obligations in conjunction with the issuance or vesting of equity incentive awards in accordance with the terms of any plan or award agreement relating to such equity incentive awards or (f) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer of Shares made by ~~blood, marriage~~ the undersigned (i) in connection with the sale or ~~adoption, not more remote than first cousin. As~~ other bona fide transfer in a single transaction of all or substantially all of the ~~date hereof~~undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as the ~~Undersigned~~case may be, or all or substantially all of the undersigned’s ~~Shares are not~~assets, ~~and~~ in any such case not undertaken for the ~~duration~~ purpose of avoiding the restrictions imposed by this ~~Lock-Up Agreement~~ agreement or (ii) to another corporation, partnership, limited liability company or other business entity so long as the ~~Undersigned’s Shares will~~ transferee is an affiliate of the undersigned and such transfer is not ~~be, pledged, hypothecated, or granted as collateral or security~~ for ~~any obligation~~value. [In addition, ~~notwithstanding~~ the ~~foregoing,~~ undersigned agrees that during the Lock-Up Period, without the ~~undersigned may sell or otherwise dispose~~ prior written consent of the ~~Undersigned~~Representatives, it will not make any demand for or exercise any right with respect to the registration of any Shares or any security convertible into or exercisable or exchangeable for Shares. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares ~~for~~ except in compliance with this Agreement. No provision in this agreement shall be deemed to restrict or prohibit the ~~purpose of raising proceeds to cover~~ exercise or ~~otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred~~ exchange by the undersigned ~~as a result~~ of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares; provided that, the ~~vesting,~~ undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up Period, ~~of restricted shares of Common Stock outstanding on the date hereof~~ unless otherwise permitted pursuant to ~~stock plans disclosed in~~ the ~~Time~~ terms of ~~Sale Information~~ this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a so-called “10b5-1” plan at any time (~~as defined in~~ other than the ~~Underwriting Agreement), provided that each such transfer shall occur on~~ entry into or ~~about the time~~ modification of such ~~vesting and shall be~~ a plan in such a manner as to cause the sale of ~~an amount of the Undersigned’s~~ any Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s or any securities convertible into or exercisable or exchangeable for Shares ~~during~~ within the Lock-Up ~~Period as a result of such sale or disposition, the~~ Period). The undersigned ~~shall include a statement in such report to the effect~~ understands that the ~~purpose of such sale or other disposition was to cover tax obligations~~ Company and the Representatives are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned ~~in connection with the vesting of~~ further understands that this agreement is irrevocable and shall be binding upon the undersigned’s ~~restricted shares~~ heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by ____________, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of ~~Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx~~the Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, ~~who serves as trustee~~ including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of ~~several GRATs established by his mother~~which are subject to negotiation between the Company and the Representatives. Very truly yours, ~~Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause~~ (~~ii).~~Name): (Address) ANNEX 1 Subsidiaries

Appears in 1 contract

Samples: Underwriting Agreement (Eco-Stim Energy Solutions, Inc.)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that ~~(a) the Underwriters~~Xxxxx Fargo Securities’ research analysts and research ~~departments~~ department are required to be independent from ~~their respective~~ the investment banking ~~divisions~~ division and are subject to certain regulations and internal ~~policies~~ policies, and ~~(b) the Underwriters~~that Xxxxx Fargo Securities’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the ~~Company, the value of the Common Stock~~ Company and/or the offering that differ from the views of ~~their respective~~ the investment banking ~~divisions~~division. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ the Company may have against ~~the Underwriters~~ Xxxxx Fargo Securities with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by ~~the Underwriters’~~ its independent research analysts and research departments may be different from or inconsistent with the views or ~~advice~~ advise communicated to the Company ~~or the Selling Stockholder~~ by ~~any Underwriter’s~~ Xxxxx Fargo Securities’ investment banking ~~division~~divisions. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that ~~each of the Underwriters~~ Xxxxx Fargo Securities is a full service securities firm and as ~~such,~~ such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that ~~are~~ may be the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ [Signature Page Follows.] If the foregoing ~~correctly sets forth~~ is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between ~~the Company~~Xxxxx Fargo Securities, the ~~Selling Stockholder~~ Company and the ~~several Underwriters~~Partnership in accordance with its terms. Very truly yours, ~~HEARTLAND EXPRESS~~PARKWAY PROPERTIES, INC. By /s/ ~~Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009~~ Xxxxxx ~~Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx~~ X. Xxxxxx Name: ~~Xxxxxxxx~~ Xxxxxx X. Xxxxxx Title: ~~Trustee~~ President and CEO PARKWAY PROPERTIES LP By: Parkway Properties General Partners, Inc., its sole general partner By /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx Title: President and CEO CONFIRMED AND ACCEPTED, as of the date first above ~~mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By~~written: ~~/s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative~~ XXXXX FARGO SECURITIES, LLC ~~By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By:~~ By /s/ Xxxxxxx X. Xxxxx Authorized ~~Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000~~ Signatory EXHIBIT C COMPENSATION Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives Securities shall be paid compensation equal to 2% of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director gross proceeds from the sales of ~~Heartland Express, Inc., a Nevada corporation (~~Securities pursuant to the ~~“Company”), or one~~ terms of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting this Agreement (the “~~Underwriting Agreement~~Base Commission”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).

Appears in 1 contract

Samples: Equity Distribution Agreement (Parkway Properties Inc)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or by the ~~Selling Stockholder by any Underwriter’s~~ Underwriters’ investment banking division. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ If the foregoing correctly sets forth the ~~agreement~~ understanding between the Underwriters and the Company, please so indicate in the ~~Selling Stockholder and the several Underwriters~~space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. Very truly yours, ~~HEARTLAND EXPRESS~~ECO-STIM ENERGY SOLUTIONS, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ J. Cxxxx Xxxxxxx ~~Xxxxxx Authorized Representative XXXXX FARGO SECURITIES~~Name: J. Cxxxx Xxxxxxx Title: President and CEO Accepted on the date first above written. FBR Capital Markets & Co. By: /s/ Pxxx Xxxxxxxxx Name: Pxxx Xxxxxxxxx Title: Senior Managing Director Rxxx Capital Partners, LLC By: /s/ ~~Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS~~Axxxx X. Xxxxxxxx Name: Axxxx X. Xxxxxxxx Title: Head of Equity Capital Markets Each for itself and, ~~a division~~ together, as Representatives of ~~BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16~~ the other Underwriters named on Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information hereto. SCHEDULE I Underwriter Number of Firm ~~Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit~~ Shares to be Purchased FBR Capital Markets & Co. 3,107,500 Rxxx Capital Partners, LLC 1,677,500 Seaport Global Securities LLC 715,000 Total 5,500,000 Schedule I EXHIBIT A ~~[SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc.~~ Lock-Up Agreement ~~XXXXXX~~_______, ~~XXXXXXXX~~ 201_ FBR Capital Markets & ~~COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities~~Co. Rxxx Capital Partners, LLC ~~BB&T~~ c/o FBR Capital ~~Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx~~ Markets & ~~Company, Incorporated Xxx Xxxxx Xxxxxx,~~ Co. 1000 00xx Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 ReAttn: ~~Heartland Express~~General Counsel c/o Roth Capital Partners, ~~Inc. - Lock-Up Agreement~~ LLC 800 Xxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxx, XX 00000 Attn: Managing Director Ladies and Gentlemen: The ~~undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries,~~ undersigned understands that ~~Xxxxxx, Xxxxxxxx~~ FBR Capital Markets & ~~Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC~~ Co. and ~~BB&T~~ Rxxx Capital ~~Markets, a division of BB&T Securities~~Partners, LLC (each a “Representative” and together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)) with Eco-Stim Energy Solutions, ~~on behalf of the several Underwriters named in Schedule I to such agreement (collectively~~Inc., ~~the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ a Nevada corporation (the “~~Selling Stockholder~~Company”), providing for a the public offering (the “Public Offering”) ~~of Shares (as defined in the Underwriting Agreement). In consideration of the agreement~~ by the Underwriters named on Schedule I thereto (the “Underwriters”) of __________ shares of common stock (“Firm Shares”), par value $0.001 per share, of the Company (the “Shares”). To induce the Representatives to ~~offer and sell~~ continue its efforts in connection with the ~~Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged~~Public Offering, the undersigned hereby agrees that, without the prior written consent of the Representatives, it will not, during the period ~~beginning~~ commencing on the date hereof and ending ~~on the date that is~~ 90 days ~~from~~ after the date of the final prospectus (the “Prospectus”) relating to the Public Offering (the “Lock-Up Period”), ~~the undersigned agrees that~~(1) offer, ~~without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer~~pledge, sell, contract to sell, ~~pledge~~grant, lend, ~~grant any option to purchase, make any short sale~~ or otherwise transfer or dispose of of, directly or indirectly, any ~~shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock,~~ Shares or any securities convertible ~~into,~~ into or exercisable or exchangeable for Shares, or ~~that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned~~ (~~including holding as a custodian~~2) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in enter into any ~~hedging~~ swap or other ~~transaction~~ arrangement that ~~is designed~~ transfers to ~~result in~~another, in whole or ~~that reasonably could be expected to lead to~~in part, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the ~~Undersigned’s~~ economic consequences of ownership of the Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Shares or ~~with respect to any security that includes~~such other securities, ~~relates to~~ in cash or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Sharesotherwise. Notwithstanding the foregoing, the undersigned ~~may, during~~ may transfer Shares without the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member prior consent of the ~~immediate family~~ Representatives in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the ~~undersigned~~Public Offering; provided that, ~~provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii~~no filing under Section 16(a) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of Shares or other securities acquired in such open market transactions, (b) if the undersigned is an individual, transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of a family member; provided that, in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no ~~other public~~ filing ~~or report regarding such transfer~~ under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the Lock-Up up Period~~. For purposes~~ , (c) transfer of ~~this Lock-Up Agreement~~Shares to a charity or educational institution, ~~“immediate family” shall mean~~ (d) if the undersigned is, or directly or indirectly controls, a corporation, partnership, limited liability company or other business entity, any ~~relationship~~ transfers of Shares to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned, as the case may be, if, in any such case, such transfer is not for value, (e) Shares disposed of to satisfy federal income tax and tax withholding obligations in conjunction with the issuance or vesting of equity incentive awards in accordance with the terms of any plan or award agreement relating to such equity incentive awards or (f) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer of Shares made by ~~blood, marriage~~ the undersigned (i) in connection with the sale or ~~adoption, not more remote than first cousin. As~~ other bona fide transfer in a single transaction of all or substantially all of the ~~date hereof~~undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as the ~~Undersigned~~case may be, or all or substantially all of the undersigned’s ~~Shares are not~~assets, ~~and~~ in any such case not undertaken for the ~~duration~~ purpose of avoiding the restrictions imposed by this ~~Lock-Up Agreement~~ agreement or (ii) to another corporation, partnership, limited liability company or other business entity so long as the ~~Undersigned’s Shares will~~ transferee is an affiliate of the undersigned and such transfer is not ~~be, pledged, hypothecated, or granted as collateral or security~~ for ~~any obligation~~value. [In addition, ~~notwithstanding~~ the ~~foregoing,~~ undersigned agrees that during the Lock-Up Period, without the ~~undersigned may sell or otherwise dispose~~ prior written consent of the ~~Undersigned~~Representatives, it will not make any demand for or exercise any right with respect to the registration of any Shares or any security convertible into or exercisable or exchangeable for Shares. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares ~~for~~ except in compliance with this Agreement. No provision in this agreement shall be deemed to restrict or prohibit the ~~purpose of raising proceeds to cover~~ exercise or ~~otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred~~ exchange by the undersigned ~~as a result~~ of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares; provided that, the ~~vesting,~~ undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up Period, ~~of restricted shares of Common Stock outstanding on the date hereof~~ unless otherwise permitted pursuant to ~~stock plans disclosed in~~ the ~~Time~~ terms of ~~Sale Information~~ this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a so-called “10b5-1” plan at any time (~~as defined in~~ other than the ~~Underwriting Agreement), provided that each such transfer shall occur on~~ entry into or ~~about the time~~ modification of such ~~vesting and shall be~~ a plan in such a manner as to cause the sale of ~~an amount of the Undersigned’s~~ any Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s or any securities convertible into or exercisable or exchangeable for Shares ~~during~~ within the Lock-Up ~~Period as a result of such sale or disposition, the~~ Period). The undersigned ~~shall include a statement in such report to the effect~~ understands that the ~~purpose of such sale or other disposition was to cover tax obligations~~ Company and the Representatives are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned ~~in connection with the vesting of~~ further understands that this agreement is irrevocable and shall be binding upon the undersigned’s ~~restricted shares~~ heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by ____________, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of ~~Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx~~the Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, ~~who serves as trustee~~ including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of ~~several GRATs established by his mother~~which are subject to negotiation between the Company and the Representatives. Very truly yours, ~~Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause~~ (~~ii).~~Name): (Address) ANNEX 1 Subsidiaries

Appears in 1 contract

Samples: Underwriting Agreement (Eco-Stim Energy Solutions, Inc.)

Research Analyst Independence. The ~~Company and the Selling Stockholder~~ TXO Parties acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the ~~Company~~Partnership, the value of the Common ~~Stock~~ Units and/or the offering that differ from the views of their respective investment banking divisions. The ~~Company and the Selling Stockholder~~ TXO Parties hereby waive and release, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the ~~Company or the Selling Stockholder~~ TXO Parties by any Underwriter’s investment banking division. The ~~Company and the Selling Stockholder~~ TXO Parties acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in ~~debt~~ the Common Units or ~~equity~~ any other securities of the ~~companies that are the subject of the transactions contemplated by this Agreement~~Partnership. Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the ~~Company, the Selling Stockholder~~ TXO Parties and the ~~several~~ Underwriters. Very truly yours, ~~HEARTLAND EXPRESS~~MorningStar Partners, ~~INC.~~ L.P. By: MorningStar Oil & Gas, LLC, its general partner /s/ Xxxxx X. Xxxx ~~X. Xxxxxxx~~ Name: Xxxxx X. Xxxx ~~X. Xxxxxxx~~ Title: ~~Executive Vice~~ President of ~~Finance~~ Business Operations and Chief Financial Officer ~~SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ MorningStar Oil & Gas, LLC /s/ ~~Xxxxxxxx~~ Xxxxx X. ~~Xxxxxx~~ Xxxx Name: ~~Xxxxxxxx~~ Xxxxx X. ~~Xxxxxx~~ Xxxx Title: ~~Trustee~~ President of Business Operations and Chief Financial Officer TXO Energy GP, LLC /s/ Xxxxx X. Xxxx Name: Xxxxx X. Xxxx Title: President of Business Operations and Chief Financial Officer CONFIRMED as of the date first above mentioned, ~~on behalf~~ for themselves and as Representatives of the ~~Representatives and the other~~ several Underwriters named in Schedule I hereto. XXXXXXX XXXXX & ASSOCIATES, INC. By: /s/ Xxxxxx Xxxx Authorized Representative XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ ~~Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx~~ Xxxxxx Xxxxxx Authorized Representative ~~XXXXX FARGO SECURITIES~~[Signature Page to Underwriting Agreement] SCHEDULE I Underwriters Name: Number of Firm Units Number of Additional Units Xxxxxxx Xxxxx & Associates, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Inc. 2,350,000 352,500 Xxxxxx, Xxxxxxxx & Company, Incorporated ~~975,000 Xxxxxxxx Inc. 975,000~~ 1,500,000 225,000 Xxxxxx Xxxxxxxxxx Xxxxx ~~Fargo~~ LLC 750,000 112,500 Capital One Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).400,000 60,000 Total 5,000,000 750,000 SCHEDULE II

Appears in 1 contract

Samples: TXO Energy Partners, L.P.

Appears in 1 contract

Samples: Underwriting Agreement (First Guaranty Bancshares, Inc.)

Research Analyst Independence. The ~~Company and the Selling Stockholder~~ Partnership Parties acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the ~~Company~~Partnerships, the value of the ~~Common Stock~~ Units and/or the offering that differ from the views of their respective investment banking divisions. The ~~Company~~ Partnership Parties hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the ~~Company or the Selling Stockholder~~ Partnership Parties by any Underwriter’s investment banking division. The ~~Company and the Selling Stockholder acknowledge~~ Partnership Parties acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [SIGNATURE PAGES FOLLOWS] Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the ~~Company, the Selling Stockholder~~ Partnership Parties and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS~~CYPRESS ENERGY PARTNERS, ~~INC.~~ L.P. By: Cypress Energy Partners GP, LLC, its General Partner By: /s/ ~~Xxxx X. Xxxxxxx~~ G. Lxx Xxxxxx Name: ~~Xxxx X. Xxxxxxx~~ G. Lxx Xxxxxx Title: ~~Executive~~ Vice President ~~of Finance~~ and Chief Financial Officer ~~SELLING STOCKHOLDER~~CYPRESS ENERGY PARTNERS GP, LLC By: ~~2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ /s/ ~~Xxxxxxxx X.~~ G. Lxx Xxxxxx Name: ~~Xxxxxxxx X.~~ G. Lxx Xxxxxx Title: ~~Trustee~~ Vice President and Chief Financial Officer CYPRESS ENERGY HOLDINGS, LLC By: /s/ G. Lxx Xxxxxx Name: G. Lxx Xxxxxx Title: Chief Financial Officer CYPRESS ENERGY HOLDINGS II, LLC By: /s/ G. Lxx Xxxxxx Name: G. Lxx Xxxxxx Title: Chief Financial Officer, Vice Present, Secretary and Treasurer Signature Pages to Underwriting Agreement CYPRESS ENERGY PARTNERS – TIR, LLC By: /s/ G. Lxx Xxxxxx Name: G. Lxx Xxxxxx Title: Chief Financial Officer, Vice President, Secretary and Treasurer CYPRESS ENERGY PARTNERS, LLC By: /s/ G. Lxx Xxxxxx Name: G. Lxx Xxxxxx Title: Chief Financial Officer, Vice President, Secretary and Treasurer Signature Pages to Underwriting Agreement CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. ~~XXXXXX~~RXXXXXX JXXXX & ASSOCIATES, INC. By: /s/ Bxxxx X. Xxxxxxx Name: Bxxxx X. Xxxxxxx Title: Managing Director RXXXXX X. XXXXX & CO. INCORPORATED By: /s/ Cxxxxx Xxxx Name: Cxxxxx Xxxx Title: Managing Director SXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ ~~Xxxxx~~ Dxxxxx X. Xxxxxxx ~~Authorized Representative XXXXXXXX INC~~Name: Dxxxxx X. Xxxxxxx Title: Managing Director BMO CAPITAL MARKETS CORP. By: /s/ Txxxxx Xxxxxxx ~~Xxxxxx Authorized Representative XXXXX FARGO SECURITIES~~Name: Txxxxx Xxxxxxx Title: Director Signature Pages to Underwriting Agreement SCHEDULE I - UNDERWRITERS Name Firm Units Rxxxxxx Jxxxx & Associates, ~~LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx~~ Inc. 1,687,500 Rxxxxx X. Xxxxx ~~Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx~~& Co. Incorporated 750,000 Sxxxxx, Xxxxxxxx & Company, Incorporated ~~975,000 Xxxxxxxx Inc. 975,000~~ 750,000 BMO Capital Markets Corp. 187,500 Jxxxxx Mxxxxxxxxx Xxxxx ~~Fargo~~ LLC 187,500 Wxxxxxxxxx Securities, ~~LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000~~ Inc. 187,500 Total: ~~3,250,000~~ 3,750,000 Schedule I to Underwriting Agreement SCHEDULE II ~~Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information~~ - TIME OF SALE INFORMATION Number of Firm ~~Shares~~Units: ~~3,250,000 Number of Additional Shares: 487,500~~ 3,750,000 Public Offering Price: $~~23.75~~ 20.00 per ~~share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock~~Unit Schedule II to Underwriting Agreement SCHEDULE III – SIGNATORIES TO LOCK-~~Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities~~UP LETTERS Cypress Energy Holdings, LLC ~~BB&T Capital Markets, a division of BB&T Securities~~Cypress Energy Holdings II, LLC ~~As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc.~~ Cypress Energy Partners - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo SecuritiesTIR, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Pxxxx X. Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).III

Appears in 1 contract

Samples: Cypress Energy Partners, L.P.

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that they may have against the Underwriters with respect to any discrepancy or conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by any Underwriter’s investment banking division. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between the ~~Company, the Selling Stockholder~~ Company and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS~~COVENANT TRANSPORTATION GROUP, INC. /s/ ~~Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx~~ Dxxxx X. Xxxxxx Name: ~~Xxxxxxxx~~ Dxxxx X. Xxxxxx Title: ~~Trustee~~ Chairman, President and Chief Executive Officer CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. ~~XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ SXXXXXXX INC. By: /s/ ~~Xxxxxxx~~ Mxxxxxx Xxxxxx Authorized Representative ~~XXXXX FARGO SECURITIES~~Mxxxxxx Xxxxxx, ~~LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx -~~ Managing Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ ~~Xxxxxxx~~ Exxx X. ~~Xxxxx~~ Xxxxxx Authorized Representative ~~Xxxxxxx~~ Exxx X. ~~Xxxxx~~ Xxxxxx, Managing Director ~~US 3297123v.16 Schedule~~ SCHEDULE I Name Number ~~ofFirm~~ Firm Shares ~~Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx~~ Sxxxxxxx Inc. ~~975,000 Xxxxx Fargo Securities, LLC 650,000~~ 1,320,000 BB&T Capital Markets, a division of BB&T Securities, LLC ~~650,000~~ 726,000 Avondale Partners, LLC 198,000 Cxxxx and Company, LLC 198,000 WR Securities, LLC 198,000 Total: ~~3,250,000 Schedule~~ 2,640,000 SCHEDULE II Free Writing Prospectuses Free Writing Prospectus, dated November 13, 2014 (Press Release) The electronic roadshow available at ~~xxx.xxxxxxxxxxx.xxx~~ wxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: ~~3,250,000~~ 2,640,000 Number of ~~Additional~~ Option Shares: ~~487,500~~ 396,000 Public Offering Price: $~~23.75~~ 22.00 per share of Common Stock ~~Exhibit~~ EXHIBIT A ~~[SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express~~Covenant Transportation Group, Inc. Lock-Up Agreement ~~XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX~~ SXXXXXXX INC. ~~Xxxxx Fargo Securities, LLC~~ BB&T ~~Capital Markets~~CAPITAL MARKETS, a division of BB&T ~~Securities~~SECURITIES, LLC ~~As Representatives of the Several Underwriters x~~c/~~x Xxxxxx~~o Stephens Inc. 100 Xxxxxx Xxxxxx Xxxxxx Xxxx, ~~Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx~~ XX 00000 Re: ~~Heartland Express~~Covenant Transportation Group, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of ~~Heartland Express~~Covenant Transportation Group, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that ~~Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC~~ Sxxxxxxx Inc. and BB&T Capital Markets, a division of BB&T Securities, ~~LLC~~ LLC, (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), ) on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the ~~Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”)~~Company, providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 75 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of ~~Xxxxxx, Xxxxxxxx & Company, Incorporated~~the Representatives, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Class A Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of ~~Xxxxxx, Xxxxxxxx & Company, Incorporated~~the Representatives, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned ~~may, during the Lock-Up Period,~~ may (a) transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any ~~trust~~trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, ~~[or]~~ or (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth ~~herein, [~~herein or (ivb) to establish any contract, instruction, or plan under Rule 10b5-1 (a ~~member~~ “10b5-1 Plan”) of the ~~undersigned’s immediate family~~Exchange Act, provided that no sales of the ~~undersigned~~Undersigned’s ~~immediate family member agrees~~ Shares shall be made pursuant to ~~be bound~~ such 10b5-1 Plan in ~~writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1~~violation of this Lock-Up Agreement; provided, however, that it shall be a condition of transfers pursuant to clauses (ia)(i), (iia)(ii) or (~~iii~~a)(iii) and the establishment of any 10b5-1 Plan pursuant to clause (b) above that such transfers or establishment are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer or establishment shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. ~~As of the date hereof~~The undersigned now has, ~~the Undersigned’s Shares are not~~and, ~~and~~ except as contemplated by clause (a)(i), (a)(ii) or (a)(iii) above, for the duration of this Lock-Up Agreement will have, good and marketable title to the Undersigned’s ~~Shares will not be~~Shares, ~~pledged~~free and clear of all liens, ~~hypothecated~~encumbrances, ~~or granted as collateral or security for any obligation~~and claims whatsoever. ~~[In addition~~Furthermore, ~~notwithstanding~~ the ~~foregoing~~undersigned may, during the Lock-Up Period, ~~the undersigned may~~ sell ~~or otherwise dispose~~ shares of ~~the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred~~ Common Stock purchased by the undersigned ~~as a result~~ on the open market following the closing of the ~~vesting,~~ Public Offering if and only if (i) such sales are not required to be reported in any public report or filing with the SEC and (ii) the undersigned does not otherwise voluntarily effect any public filing or report with the SEC regarding such sales. If (x) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or other press release of ~~restricted~~ material information or a material event relating to the Company occurs or (y) prior to the expiration of the Lock-Up Period, the Company announces that it will release its earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the Lock-Up Period shall be extended by, and the restrictions imposed by this Lock-Up Agreement shall continue to apply until the expiration of, the 18-day period beginning on the issuance of the earnings or other press release or the occurrence of the material event; provided, however, that such extension of the lock-up period shall not apply if, (1) at the expiration of the Lock-Up Period, the Common Stock are “actively traded securities” (as defined in Regulation M under the Exchange Act) and (2) the Company meets the applicable requirements of paragraph (a)(1) of Rule 139 under the Securities Act in the manner contemplated by NASD Rule 2711(f)(4) of the FINRA Manual. Notwithstanding anything to the contrary set forth herein, on or after December 22, 2014, the undersigned may exercise one or more options to purchase shares of Common Stock ~~outstanding on~~ for cash or by transferring or forfeiting shares of Common Stock to the ~~date hereof~~ Company and may transfer or forfeit to the Company the portion of shares of Common Stock acquired upon such exercise (or otherwise held by the undersigned) necessary to cover the tax liability resulting from any such exercise, provided the options exercised are scheduled to expire in 2015. [Further, notwithstanding anything to the contrary set forth herein, the undersigned may (directly, through a spouse, or through another person or entity whose shares are beneficially owned by the undersigned pursuant to ~~stock plans disclosed~~ the rules and regulations of the SEC) sell the Undersigned’s Shares, in ~~the Time of Sale Information (as defined in the Underwriting Agreement)~~one or more transactions, provided that ~~each such transfer shall~~ the sale or sales (i) are effected pursuant to a 10b5-1 Plan for the sale of no more than 20,000 shares of Common Stock, (ii) occur on or ~~about~~ after December 22, 2014 and (iii) do not exceed 20,000 shares, in the ~~time~~ aggregate.1] The undersigned also agrees and consents to the entry of ~~such vesting~~ stop transfer instructions with the Company’s transfer agent and ~~shall be of an amount~~ registrar against the transfer of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in ~~beneficial ownership~~ violation of ~~the Undersigned’s Shares during the~~ this Lock-Up ~~Period as a result of such sale or disposition, the~~ Agreement. The undersigned ~~shall include a statement in such report to the effect~~ understands that the ~~purpose of such sale or other disposition was to cover tax obligations~~ Company and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the Public Offering. The undersigned ~~in connection with the vesting of~~ further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned’s ~~restricted shares~~ heirs, legal representatives, successors and assigns. Whether or not the Public Offering actually occurs depends on a number of ~~Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx~~factors, ~~who serves as trustee~~ including market conditions, and the Public Offering will only be made pursuant to the Underwriting Agreement. This Lock-Up Agreement shall automatically terminate and be of ~~several GRATs established by his mother~~no further force and effect if (i) the Representatives advise the Company, ~~Xxx X. Xxxxxx~~or the Company advises the Representatives, ~~which hold Company common shares and make annuity payments~~ in writing, that they will not proceed with the ~~form of Company common shares to her or to other trusts set up for her benefit~~Public Offering, ~~which would be covered by clause~~ (ii).) the termination of the Underwriting Agreement before the sale of any Shares to the Underwriters, or (iii) the Underwriting Agreement has not been executed by the Company and the Representatives by December 1, 2014. 1 This sentence to be included only in R.X. Xxxxx Xx. and Wxxxxxx X. Alt Lock-up Agreements. Very truly yours, Signature: Print name: Title: Back to Form 8-K

Appears in 1 contract

Samples: Underwriting Agreement (Covenant Transportation Group Inc)

Appears in 1 contract

Samples: Underwriting Agreement (Adamis Pharmaceuticals Corp)

Research Analyst Independence. The Company ~~and~~ acknowledges that the ~~Selling Stockholder acknowledge that (a) the Underwriters’~~ Underwriter’s research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and ~~(b)~~ the ~~Underwriters’~~ Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the ~~Underwriters~~ Underwriter with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the ~~Underwriters’~~ Underwriter’s independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by any Underwriter’s investment banking division. The Company ~~and~~ acknowledges the ~~Selling Stockholder acknowledge that each of the Underwriters~~ Underwriter is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature Page Follows] Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the Company, the ~~Selling Stockholder~~ Guarantor and the ~~several Underwriters~~Underwriter. Very truly yours, ~~HEARTLAND EXPRESS,~~ AMERANT BANCORP INC. By: /s/ ~~Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009~~ Xxxxxx ~~Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X.~~ Xxxxxx Name: ~~Xxxxxxxx X.~~ Xxxxxx Xxxxxx Title: ~~Trustee~~ Vice Chairman and CEO 29 AMERANT FLORIDA BANCORP INC. By: /s/ Xxxxxx Xxxxxxxxxx Name: Xxxxxx Xxxxxxxxxx Title: Treasurer CONFIRMED AND ACCEPTED, as of the date first above mentioned. XXXXXXX XXXXX & ASSOCIATES, ~~on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. By: /s/ ~~Xxxxxxx Xxxxxx~~ Xxxx Xxxxx Name: Xxxx Xxxxx Title: Authorized ~~Representative XXXXX FARGO SECURITIES~~Signatory SCHEDULE I Pricing Term Sheet [See Attached] Sch. I 1 Filed pursuant to Rule 433 Registration File No. 333-238958 Supplementing the Preliminary Prospectus Supplement dated June 16, ~~LLC By~~2020 (To Prospectus dated June 15, 2020) Amerant Bancorp Inc. Pricing Term Sheet June 19, 2020 $14,000,000 5.75% Senior Notes due 2025 Issuer: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Amerant Bancorp Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”~~), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx &~~ ) Guarantor: Amerant Florida Bancorp Inc. Expected Ratings:* BBB- by Xxxxx Bond Rating Agency A- by Xxxx-Xxxxx Ratings Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).

Appears in 1 contract

Samples: Underwriting Agreement (Amerant Bancorp Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Leap Therapeutics, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Adamis Pharmaceuticals Corp)

Appears in 1 contract

Samples: Bounty Minerals, Inc.

Appears in 1 contract

Samples: Adma Biologics, Inc.

Appears in 1 contract

Samples: Underwriting Agreement (Carolina Financial Corp)

Appears in 1 contract

Samples: Underwriting Agreement (Catalyst Biosciences, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Paragon Commercial CORP)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering and sale of the Shares that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by any Underwriter’s investment banking division. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the ~~Company, the Selling Stockholder~~ Company and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS, INC.~~ VOLITIONRX LIMITED /s/ ~~Xxxx X.~~ Xxxxxxx Xxxxxxxx Name: ~~Xxxx X.~~ Xxxxxxx Xxxxxxxx Title: Chief Executive ~~Vice President of Finance and Chief Financial~~ Officer ~~SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee~~ CONFIRMED as of the date first above mentioned, on behalf of the ~~Representatives~~ Representative and the other several Underwriters named in Schedule I hereto. ~~XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx~~ NATIONAL SECURITIES CORPORATION By:/s/ Xxxxxxxx X. Xxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ~~ofFirm~~ of Firm Shares ~~Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division~~ Number of ~~BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule~~ Additional Shares National Securities Corporation 4,365,000 654,750 Total 4,365,000 654,750 SCHEDULE II ~~Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx~~ Pricing Information ~~Number of~~ Price per share to the public: $2.75 Firm Shares: ~~3,250,000 Number of~~ 4,365,000 Additional Shares: ~~487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc.~~ 654,750 SCHEDULE III Persons Subject to Lock-Up up Xxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxx Xxxxx Xxxxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx Xxxxxx EXHIBIT A Form of Lock-up Agreement ~~XXXXXX~~__________, ~~XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives~~ 2020 National Securities Corporation as Representative of the Several Underwriters xc/x o National Securities Corporation 000 Xxxxxx Xxxxxx, ~~Xxxxxxxx & Company~~25th Floor New York, ~~Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000~~ New York 10281 Re~~: Heartland Express, Inc. - Lock-Up Agreement~~ :Public Offering of VolitionRx Limited Ladies and Gentlemen: ~~The undersigned, an officer and/or director of Heartland Express, Inc.~~This Letter Agreement is being delivered to you, a ~~Nevada~~ holder of common stock, par value $0.001 per share (“Common Stock”), or rights to acquire Common Stock, of VolitionRx Limited, a Delaware corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, in connection with the ~~“Representatives”) propose to enter into an~~ proposed Underwriting Agreement (the “~~Underwriting~~ Agreement”)) to be entered into by and between the Company and National Securities Corporation, ~~on behalf~~ as representative (the “Representative”) of the several ~~Underwriters~~ underwriters named in Schedule I to ~~such agreement~~ the Agreement (~~collectively,~~ the “Underwriters,” or each, an “Underwriter”), with respect to the proposed public offering of securities of the Company ~~and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ (the “~~Selling Stockholder~~Securities”~~), providing for~~ ) pursuant to a ~~public offering~~ registration statement (the “~~Public~~ Registration Statement”) on Form S-3 (File No. 333-227248; the “Offering”~~) of Shares (as defined in the Underwriting Agreement~~). In consideration of the Underwriters’ agreement by to enter into the ~~Underwriters~~ Agreement and to ~~offer and sell~~ proceed with the ~~Shares~~Offering of the Securities, and of for other good and valuable ~~consideration the~~ consideration, receipt ~~and sufficiency~~ of which is hereby acknowledged, the undersigned hereby agrees for the benefit of the Company and the Underwriters that, without the prior written consent of the Representative, the undersigned will not, during the period ~~beginning on the date hereof and~~ ending ~~on the date that is~~ 90 days ~~from the date of the final prospectus relating to the Public Offering~~ (the “Lock-Up Period”) after the date of the prospectus supplement relating to the Offering (the “Prospectus Supplement”), directly or indirectly (1) offer, pledge, assign, encumber, announce the ~~undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer~~intention to sell, sell, contract to sell, ~~pledge~~sell any option or contract to purchase, ~~lend~~purchase any option or contract to sell, grant any ~~option~~ option, right or warrant to purchase, ~~make any short sale~~ or otherwise transfer or dispose ~~of any shares of the Company’s Common Stock~~of, ~~par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase~~ any shares of Common ~~Stock,~~ Stock or any securities convertible ~~into,~~ into or exercisable or exchangeable for Common Stock owned either of record or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members beneficially (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) by the undersigned on the date hereof or hereafter acquired or (2) enter into any swap or other agreement that transfers, ~~and~~ in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, or publicly announce an intention to do any of the foregoing. In addition, the undersigned agrees that, without the prior written consent of the Representative, it will not, during the period ending 90 days after the date of the Prospectus Supplement, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The limitations set forth in the foregoing paragraph shall not apply to (a) transactions relating to shares of Common Stock or other securities acquired in the Offering or in open market transactions after the completion of the Offering, provided that no ~~other public~~ filing ~~or report regarding such transfer~~ under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made ~~during~~ in connection with subsequent sales of Common Stock or other securities acquired in the ~~Lock-Up Period. For~~ Offering or in such open market transactions; (b) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock (i) as a bona fide gift or for bona fide estate planning purposes, (ii) upon death or by will, testamentary document or intestate succession, (iii) to an immediate family member of the undersigned or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this ~~Lock-Up Agreement~~agreement, “immediate family” shall mean any relationship by blood, current or former marriage or adoption, not more remote than first cousin~~. As~~ ), (iv) not involving a change in beneficial ownership, (v) if the undersigned is a trust, to any beneficiary of the ~~date hereof~~undersigned or the estate of any such beneficiary, or (vi) to a charity or educational institution; (c) distributions or transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to stockholders, direct or indirect affiliates (within the ~~Undersigned’s Shares are not~~meaning set forth in Rule 405 under the Securities Act of 1933, ~~and~~ as amended), current or former partners (general or limited), members or managers of the undersigned, as applicable, or to the estates of any such stockholders, affiliates, partners, members or managers; (d) sales under any existing Rule 10b5-1 plan or the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the ~~duration~~ transfer of ~~this~~ shares of Common Stock, provided that with respect to the establishment of a plan (i) such plan does not provide for the transfer of shares of Common Stock during the Lock-Up ~~Agreement~~ Period and (ii) no public announcement or filing under the ~~Undersigned’s Shares will not be, pledged, hypothecated,~~ Exchange Act regarding the establishment of such plan shall be required or ~~granted as collateral~~ shall be voluntarily made by or ~~security for any obligation. [In addition, notwithstanding~~ on behalf of the ~~foregoing,~~ undersigned or the Company during the Lock-Up Period; and (e) sales of Common Stock pursuant to the terms of the Agreement, provided, in the case of clauses (b)-(c), that such transfer shall not involve a disposition for value and the transferee agrees in writing with the Underwriters and the Company to be bound by the terms hereof. Moreover, the ~~undersigned may sell~~ foregoing restrictions shall not apply to (i) the exercise of stock options or ~~otherwise dispose~~ other equity awards granted pursuant to the Company’s equity incentive plans prior to the date of the ~~Undersigned’s Shares for~~ Prospectus Supplement; (ii) cashless “net” exercises of options and warrants held by the ~~purpose of raising proceeds to cover or otherwise satisfying~~ undersigned; and (iii) the ~~reasonably estimated U.S. federal or state tax liability incurred~~ receipt by the undersigned ~~as a result~~ of any securities of the ~~vesting~~Company directly from the Company, ~~during the Lock-Up Period~~including, ~~of restricted~~ but not limited to, shares of Common Stock ~~outstanding on the date hereof~~ and stock options granted pursuant to ~~stock plans disclosed in~~ the ~~Time~~ Company’s equity incentive plans, and warrants exercisable for securities of ~~Sale Information (as defined in~~ the ~~Underwriting Agreement),~~ Company; provided that ~~each~~ any securities of the Company issued upon exercise thereof shall continue to be subject to the terms of this Letter Agreement. In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer ~~shall occur on~~ would constitute a violation or ~~about~~ breach of this Letter Agreement. The undersigned hereby represents and warrants that the ~~time~~ undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred and any obligations of ~~such vesting and~~ the undersigned shall be ~~of an amount~~ binding upon the successors, assigns, heirs or personal representatives of the ~~Undersigned’s Shares that raises gross proceeds~~ undersigned. The undersigned understands that, ~~as nearly as reasonably practicable, approximate such tax liability, and provided further that~~ if the ~~undersigned is required~~ Agreement does not become effective, or if the Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to ~~make a filing under the Exchange Act reporting a reduction in beneficial ownership~~ payment for and delivery of the ~~Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition~~Common Stock to be sold thereunder, the undersigned shall ~~include a statement~~ be released from all obligations under this Letter Agreement. The undersigned, whether or not participating in ~~such report~~ the Offering, understands that the Underwriters are entering into the Agreement and proceeding with the Offering in reliance upon this Letter Agreement. This Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the ~~effect that the purpose~~ conflict of ~~such sale or~~ laws principles thereof (other ~~disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD~~than New York General Obligations Law § 5-1401). Very truly yours, [STOCKHOLDER] By:______________________________________ Name: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Title:

Appears in 1 contract

Samples: Underwriting Agreement (Volitionrx LTD)

Research Analyst Independence. The Company and the ~~Selling Stockholder~~ Operating Company acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the ~~Selling Stockholder~~ Operating Company hereby waive and release, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the ~~Selling Stockholder~~ Operating Company by any Underwriter’s investment banking division. The Company and the ~~Selling Stockholder~~ Operating Company acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature page follows.] Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the Company, the ~~Selling Stockholder~~ Operating Company, the Manager and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS~~JXXXXXXX CAPITAL, INC. By: /s/ ~~Xxxx X. Xxxxxxx~~ Dxxx Xxxxxxxx Name: ~~Xxxx X. Xxxxxxx~~ Dxxx Xxxxxxxx Title: Chief Executive ~~Vice President of Finance and Chief Financial~~ Officer ~~SELLING STOCKHOLDER~~JXXXXXXX CAPITAL OPERATING COMPANY, LLC By: ~~2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ Jxxxxxxx Capital, Inc., its managing member By: /s/ Dxxx Xxxxxxxx ~~X. Xxxxxx~~ Name: Dxxx Xxxxxxxx ~~X. Xxxxxx~~ Title: ~~Trustee~~ Chief Executive Officer JCAP ADVISORS, LLC By: /s/ Dxxx Xxxxxxxx Name: Dxxx Xxxxxxxx Title: Chief Executive Officer CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. ~~XXXXXX~~RXXXXXX JXXXX & ASSOCIATES, ~~XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. By: /s/ ~~Xxxxxxx Xxxxxx~~ Jxxxx Xxxxx Authorized Representative ~~XXXXX FARGO SECURITIES,~~ JXXXXXXXX LLC By: /s/ ~~Xxxxx~~ Jxxx Xxxxxx Authorized Representative ~~Xxxxx Xxxxxx - Director BB&T~~ KEYBANC CAPITAL ~~MARKETS, a division of BB&T SECURITIES, LLC~~ MARKETS INC. By: /s/ ~~Xxxxxxx X. Xxxxx~~ Pxxx Xxxxxxxxxxx Authorized Representative ~~Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule~~ SCHEDULE I Name Number ~~ofFirm~~ Firm Shares ~~Xxxxxx~~Rxxxxxx Jxxxx & Associates, ~~Xxxxxxxx~~ Inc. 1,312,500 Jxxxxxxxx LLC 875,000 KeyBanc Capital Markets Inc. 612,500 Rxxxxx X. Xxxxx & ~~Company,~~ Co. Incorporated ~~975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T~~ 525,000 FBR Capital ~~Markets, a division of BB&T Securities, LLC 650,000~~ Markets & Co. 175,000 Total: ~~3,250,000 Schedule II~~ 3,500,000 Issuer Free Writing ~~Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx~~ Prospectus None. SCHEDULE II-2 Pricing Information Number of Firm Shares: ~~3,250,000~~ 3,500,000 Number of Additional Shares: ~~487,500~~ 525,000 Public Offering ~~Price~~Price per Share: $~~23.75~~ 22.00 Discount per ~~share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc.~~ Share: 5.00% SCHEDULE III Persons Subject to Lock-~~Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities~~up JCAP Advisors, LLC ~~BB&T Capital Markets, a division of BB&T Securities~~Dxxx Xxxxxxxx Mxxx X. Xxxxxx Hxxxxx X. Silver Hxxxx X. Xxxx W1 Capital, LLC ~~As Representatives of the Several Underwriters x/x Xxxxxx~~Jxxx X. Good Jxxxx Xxxxxxx Kxxxx X. Xxxxxxxx Highland Capital Management Fund Advisors, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo SecuritiesL.P. NexPoint Real Estate Capital, LLC ~~and BB&T Capital Markets~~NexPoint Real Estate Opportunities, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).LLC

Appears in 1 contract

Samples: Underwriting Agreement (Jernigan Capital, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (United Insurance Holdings Corp.)

Research Analyst Independence. ~~The~~ Each of the Company and the Selling ~~Stockholder acknowledge~~ Shareholders acknowledges that ~~(a)~~ the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal ~~policies~~ policies, and ~~(b) the~~ that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the ~~Company, the value of the Common Stock~~ Company and/or the offering that differ from the views of their respective investment banking divisions. ~~The~~ Each of the Company and the Selling ~~Stockholder~~ Shareholders hereby ~~waive~~ waives and ~~release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ the Company and the Selling Shareholders may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by ~~the Underwriters’~~ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the Selling ~~Stockholder~~ Shareholders by ~~any Underwriter’s~~ such Underwriters’ investment banking ~~division~~divisions. ~~The~~ Each of the Company and the Selling ~~Stockholder acknowledge~~ Shareholders acknowledges that each of the Underwriters is a full service securities firm and as ~~such,~~ such from time to time, subject to applicable securities laws, may effect transactions for its own account or for the account of its customers and hold long or short positions in debt or equity securities of the ~~companies that are~~ Company. If the ~~subject~~ foregoing is in accordance with your understanding, please sign and return to us six counterparts hereof, and upon the acceptance hereof by you this letter and such acceptance hereof shall constitute a binding agreement among each of the ~~transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement between the Company~~Underwriters, the ~~Selling Stockholder~~ Company and the ~~several Underwriters~~Selling Shareholders. Very truly yours, ~~HEARTLAND EXPRESS~~THE ANDERSONS, INC. ~~/s/ Xxxx X. Xxxxxxx~~ By: Name: ~~Xxxx X. Xxxxxxx~~ Title: ~~Executive Vice President of Finance and Chief Financial Officer~~ SELLING ~~STOCKHOLDER~~SHAREHOLDERS: ~~2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/~~ Mxxxxxx X. Xxxxxxxx Rxxxxxx X. Xxxxxxxx Rxxxxxx X. Xxxxxxxx LLC Cxxxx X. Xxxxx Pxxx X. Xxxxx Dxxx X. Xxxxxx Cxxxxxx X. Xxxxxxxxx Rxxxxxx X. Xxxxxx Gxxx X. Xxxxx By: Name: ~~Xxxxxxxx X. Xxxxxx~~ Title: ~~Trustee CONFIRMED~~ Attorney-in-Fact Accepted as of the date first ~~above mentioned~~above: BB&T CAPITAL MARKETS, on a Division of Sxxxx & Sxxxxxxxxxxx, Inc. By: Name: Title: PXXXX XXXXXXX & CO. By: Name: Title: On behalf of ~~the Representatives~~ themselves and the other ~~several~~ Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).

Appears in 1 contract

Samples: Underwriting Agreement (Andersons Inc)

Research Analyst Independence. The Company and ~~the~~ Selling ~~Stockholder~~ Shareholders acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and ~~the~~ Selling ~~Stockholder~~ Shareholders hereby ~~waive~~ waives and ~~release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the~~ and/or Selling ~~Stockholder~~ Shareholders by any Underwriter’s investment banking division. The Company and ~~the~~ Selling ~~Stockholder~~ Shareholders each acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the Company, the Selling ~~Stockholder~~ Stockholders and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS~~Applied Optoelectronics, ~~INC.~~ Inc. /s/Xxxxxxxx Xxx Xxxxxxxx Xxx President and Chief Executive Officer The Selling Stockholders Named in Schedule II Hereto, Acting Severally Very truly yours, Applied Optoelectronics, Inc. /s/Xxxxxxxx Xxx Xxxxxxxx Xxx President and Chief Executive Officer The Selling Stockholders Named in Schedule II Hereto, Acting Severally By: /s/ ~~Xxxx X. Xxxxxxx~~ Xxxxx Xxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee Xxxxx Xxx Attorney-in-Fact CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. ~~XXXXXX~~XXXXXXX XXXXX & ASSOCIATES, ~~XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. By: /s/ ~~Xxxxxxx~~ Xxxx Xxxxxx Authorized Representative XXXXX ~~FARGO SECURITIES, LLC~~ XXXXXXX & CO. By: /s/ ~~Xxxxx~~ Xxxxxx X. Xxxxxxx Authorized Representative ~~Xxxxx~~ Xxxxxx ~~- Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/~~ X. Xxxxxxx ~~X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx~~ Managing Director ~~US 3297123v.16~~ Signature Page to Underwriting Agreement SCHEDULE I Schedule I of Underwriters Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm ~~Shares~~Shares Xxxxxxx Xxxxx & Associates, Inc. 1,080,000 Xxxxx Xxxxxxx & Co. 990,000 Xxxxx and Company, LLC 360,000 Xxxx Capital Partners, LLC 330,000 Xxxxx-Xxxxxx Capital Group LLC 240,000 Total: ~~3,250,000~~ 3,000,000 Schedule I SCHEDULE II Schedule of Selling Stockholders Stockholder Number of ~~Additional Shares~~Firm Shares Techgains International Corporation 102,148 Techgains Pan Pacific Corporation 397,852 Xxxx-Xxxxxx (Xxxxxxxx) Xxx 11,531 Xxxxxx X. Xxxxx 2,230 Xxxxx X. Xxxx 1,754 Ocean Elite Limited 150,000 GRC II Corp. 292,816 Grand River Capital Investment Company Limited 202,072 GIZA Venture Fund IV (TW) L.P. 39,216 GIZA Venture Fund V (TW) L.P. 44,492 Budworth Investments Limited 53,724 Kummell Investments Limited 102,284 Harbinger III Venture Capital Corp. 23,023 Xxxxx X. Xxx 1,623 Total: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in 1,424,765 Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).II Annex A

Appears in 1 contract

Samples: Lock Up Agreement (Applied Optoelectronics, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Avenue Therapeutics, Inc.)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that (a) the ~~Underwriters’~~ Underwriter’s research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the ~~Underwriters’~~ Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the ~~Underwriters~~ Underwriter with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the ~~Underwriters’~~ Underwriter’s independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or by the ~~Selling Stockholder by any~~ Underwriter’s investment banking division. The Company ~~and~~ acknowledges that the ~~Selling Stockholder acknowledge that each of the Underwriters~~ Underwriter is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ If the foregoing correctly sets forth the ~~agreement~~ understanding between the Underwriter and the Company, please so indicate in the ~~Selling Stockholder and the several Underwriters~~space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. Very truly yours, ~~HEARTLAND EXPRESS~~ECO-STIM ENERGY SOLUTIONS, INC. ~~/s/ Xxxx X. Xxxxxxx~~ By: Name: ~~Xxxx X. Xxxxxxx~~ Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of Accepted on the date first above ~~mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto~~written. ~~XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES~~RXXX CAPITAL PARTNERS, LLC By: ~~/s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By~~Name: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 TotalTitle: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit EXHIBIT A ~~[SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc.~~ Lock-Up Agreement ~~XXXXXX~~___________ __, ~~XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities~~201_ Rxxx Capital Partners, LLC ~~BB&T Capital Markets~~800 Xxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxx, ~~a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx~~ XX 00000 ReAttn: ~~Heartland Express, Inc. - Lock-Up Agreement~~ Managing Director Ladies and Gentlemen: The ~~undersigned~~undersigned understands that Rxxx Capital Partners, LLC (the “Underwriter”) proposes to enter into an ~~officer and/or director of Heartland Express~~Underwriting Agreement (the “Underwriting Agreement”) with Eco-Stim Energy Solutions, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a the public offering (the “Public Offering”) by the Underwriter of ~~Shares~~ __________ shares of common stock (~~as defined in~~ “Firm Shares”), par value $0.001 per share, of the ~~Underwriting Agreement~~Company (the “Shares”). ~~In consideration of~~ To induce the ~~agreement by~~ Underwriter to continue its efforts in connection with the ~~Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged~~Public Offering, the undersigned hereby agrees that, without the prior written consent of the Underwriter, it will not, during the period ~~beginning~~ commencing on the date hereof and ending ~~on the date that is 90~~ 180 days ~~from~~ after the date of the final prospectus (the “Prospectus”) relating to the Public Offering (the “Lock-Up Period”), ~~the undersigned agrees that~~(1) offer, ~~without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer~~pledge, sell, contract to sell, ~~pledge~~grant, lend, ~~grant any option to purchase, make any short sale~~ or otherwise transfer or dispose of of, directly or indirectly, any ~~shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock,~~ Shares or any securities convertible ~~into,~~ into or exercisable or exchangeable for Shares, or ~~that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned~~ (~~including holding as a custodian~~2) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in enter into any ~~hedging~~ swap or other ~~transaction~~ arrangement that ~~is designed~~ transfers to ~~result in~~another, in whole or ~~that reasonably could be expected to lead to~~in part, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the ~~Undersigned’s~~ economic consequences of ownership of the Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Shares or ~~with respect to any security that includes~~such other securities, ~~relates to~~ in cash or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Sharesotherwise. Notwithstanding the foregoing, the undersigned ~~may, during~~ may transfer Shares without the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member prior consent of the ~~immediate family~~ Underwriter in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the ~~undersigned~~Public Offering, provided that ~~the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii~~no filing under Section 16(a) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of Shares or other securities acquired in such open market transactions, (b) if the undersigned is an individual, transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no ~~other public~~ filing ~~or report regarding such transfer~~ under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the Lock-Up up Period, (c) transfer of Shares to a charity or educational institution, (d) if the undersigned is, or directly or indirectly controls, a corporation, partnership, limited liability company or other business entity, any transfers of Shares to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned, as the case may be, if, in any such case, such transfer is not for value, or (e) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer of Shares made by the undersigned (i) in connection with the sale or other bona fide transfer in a single transaction of all or substantially all of the undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigned’s assets, in any such case not undertaken for the purpose of avoiding the restrictions imposed by this agreement or (ii) to another corporation, partnership, limited liability company or other business entity so long as the transferee is an affiliate of the undersigned and such transfer is not for value. ~~For purposes~~ Notwithstanding the foregoing, if (x) the Company issues an earnings release or material news, or a material event relating to the Company occurs, during the last 17 days of ~~this~~ the Lock-Up ~~Agreement~~Period, ~~“immediate family” shall mean any relationship by blood, marriage~~ or ~~adoption, not more remote than first cousin. As~~ (y) prior to the expiration of the ~~date hereof, the Undersigned’s Shares are not, and for the duration of this~~ Lock-Up ~~Agreement~~ Period, the ~~Undersigned’s Shares~~ Company announces that it will ~~not be~~release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, ~~pledged~~the restrictions imposed by this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, ~~hypothecated, or granted as collateral or security for any obligation~~unless the Underwriter waives such extension in writing. [In addition, ~~notwithstanding~~ the ~~foregoing,~~ undersigned agrees that during the Lock-Up Period, without the ~~undersigned may sell or otherwise dispose~~ prior written consent of the ~~Undersigned~~Underwriter, it will not make any demand for or exercise any right with respect to the registration of any Shares or any security convertible into or exercisable or exchangeable for Shares. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares ~~for~~ except in compliance with this Agreement. No provision in this agreement shall be deemed to restrict or prohibit the ~~purpose of raising proceeds to cover~~ exercise or ~~otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred~~ exchange by the undersigned ~~as a result~~ of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares, provided that the ~~vesting,~~ undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up Period, ~~of restricted shares of Common Stock outstanding on the date hereof~~ unless otherwise permitted pursuant to ~~stock plans disclosed in~~ the ~~Time~~ terms of ~~Sale Information~~ this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a so-called “10b5-1” plan at any time (~~as defined in~~ other than the ~~Underwriting Agreement), provided that each such transfer shall occur on~~ entry into or ~~about the time~~ modification of such ~~vesting and shall be~~ a plan in such a manner as to cause the sale of ~~an amount of the Undersigned’s~~ any Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s or any securities convertible into or exercisable or exchangeable for Shares ~~during~~ within the Lock-Up ~~Period as a result of such sale or disposition, the~~ Period). The undersigned ~~shall include a statement in such report to the effect~~ understands that the ~~purpose of such sale or other disposition was to cover tax obligations~~ Company and the Underwriter are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned ~~in connection with the vesting of~~ further understands that this agreement is irrevocable and shall be binding upon the undersigned’s ~~restricted shares~~ heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by ____________, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of ~~Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx~~the Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, ~~who serves as trustee~~ including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of ~~several GRATs established by his mother~~which are subject to negotiation between the Company and the Underwriter. Very truly yours, ~~Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause~~ (iiName): (Address).

Appears in 1 contract

Samples: Underwriting Agreement (Eco-Stim Energy Solutions, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Adma Biologics, Inc.)

Research Analyst Independence. The Company and the ~~Selling Stockholder~~ Operating Partnership acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the ~~Selling Stockholder~~ Operating Partnership hereby waive and release, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the ~~Selling Stockholder~~ Operating Partnership by any Underwriter’s investment banking division. The Company and the ~~Selling Stockholder~~ Operating Partnership acknowledge that each of the Underwriters is a ~~full~~ full-service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature page follows.] Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the Company, the ~~Selling Stockholder~~ Operating Partnership, the Manager and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS~~NEXPOINT REAL ESTATE FINANCE, INC. By: /s/ ~~Xxxx X. Xxxxxxx~~ Xxxxx Xxxxx Name: ~~Xxxx X. Xxxxxxx~~ Xxxxx Xxxxx Title: ~~Executive Vice President of Finance and~~ Chief Financial ~~Officer SELLING STOCKHOLDER~~Officer, Executive VP-Finance, Secretary and Treasurer NEXPOINT REAL ESTATE FINANCE OPERATING PARTNERSHIP, L.P. By: ~~2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ /s/ ~~Xxxxxxxx X. Xxxxxx~~ Xxxxx Xxxxx Name: ~~Xxxxxxxx X. Xxxxxx~~ Xxxxx Xxxxx Title: ~~Trustee~~ Chief Financial Officer, Executive VP-Finance, Secretary and Treasurer NEXPOINT REAL ESTATE ADVISORS VII, L.P. By: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Chief Financial Officer, Executive VP-Finance, Secretary and Treasurer CONFIRMED as of the date first above mentioned, on behalf of the ~~Representatives~~ Representative and the other several Underwriters named in Schedule I hereto. ~~XXXXXX~~XXXXXXX XXXXX & ASSOCIATES, ~~XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. By: /s/ ~~Xxxxxxx Xxxxxx~~ Joszi Popper Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ~~ofFirm~~ of Firm Shares ~~Xxxxxx~~Xxxxxxx Xxxxx & Associates, Inc. 1,100,000 Xxxxx, Xxxxxxxx & ~~Company~~Xxxxx, Inc. 600,000 Xxxxxx X. Xxxxx & Co. Incorporated ~~975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000~~ 300,000 Total: ~~3,250,000 Schedule II~~ 2,000,000 SCHEDULE II-1 Issuer Free Writing ~~Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx~~ Prospectus None. SCHEDULE II-2 Pricing Information Number of Firm Shares: ~~3,250,000~~ 2,000,000 Number of Additional Shares: ~~487,500~~ 300,000 Public Offering ~~Price~~Price per Share: ~~$23.75 per share~~ 21.00 SCHEDULE III Persons Subject to Lock-up Xxxxx Xxxxxxx Xxxxx Xxxxx Xxxxxx Xxxxxxxxxxx Xxxxx Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxx Xxxx XxXxxxxx Xxxxxxx Xxxxx NexPoint Advisors, L.P. Highland Capital Management Fund Advisors, L.P. SCHEDULE IV-1 [FORM OF OPINION OF WINSTON & XXXXXX LLP] SCHEDULE IV-2 [FORM OF OPINION OF XXXXXXX XXXXX LLP] EXHIBIT A Form of ~~Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express~~Lock-up Agreement August ___, 2021 NexPoint Real Estate Finance, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x 0000 XxXxxxxx Xxxxxx, Suite 1100 Dallas, Texas 75201 Xxxxxxx Xxxxx & Associates, Inc. 000 Xxxxxxxx ~~& Company~~Xxxxxxx Xx. Xxxxxxxxxx, ~~Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx~~ Xxxxxxx 00000 Re: ~~Heartland Express~~NexPoint Real Estate Finance, Inc. ~~- Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation~~ (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, ) - Restriction on Stock Sales Dear Sirs: This letter is delivered to you pursuant to the ~~“Representatives”) propose to enter into an~~ Underwriting Agreement (the “Underwriting Agreement”) to be entered into by the Company, as issuer, NexPoint Real Estate Advisors VII, L.P. (the “Manager”), ~~on behalf~~ and NexPoint Real Estate Finance Operating Partnership, L.P., (the “Operating Partnership”) and Xxxxxxx Xxxxx & Associates, Inc. as the representative (the “Representative”) of ~~the several Underwriters named in Schedule I to such agreement~~ certain underwriters (~~collectively,~~ the “Underwriters”)) to be named therein. Upon the terms and subject to the conditions of the Underwriting Agreement, ~~with~~ the ~~Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for~~ Underwriters intend to effect a public offering (the “~~Public~~ Offering”) of ~~Shares~~ Common Stock, par value $0.01 per share, of the Company (the “Shares”). The undersigned recognizes that it is in the best financial interests of the undersigned, as ~~defined in~~ an officer or director, or an owner of stock, options, warrants or other securities of the Company (the “Company Securities”), that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or may be, subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as an inducement to the Underwriters to execute the Underwriting Agreement~~). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged~~, the undersigned hereby acknowledges and agrees ~~that~~that the undersigned will not (i) offer, ~~during~~ sell, contract to sell, pledge, grant any option to purchase or otherwise dispose of (collectively, a “Disposition”) any Company Securities, or any securities convertible into or exercisable or exchangeable for or repayable with, or any rights to purchase or otherwise acquire, any Company Securities held by the undersigned or acquired by the undersigned after the date hereof, or that may be deemed to be beneficially owned by the undersigned (collectively, the “Lock-Up Shares”), pursuant to the Rules and Regulations promulgated under the Securities Act of 1933, as amended (the “Act”), and the Securities Exchange Act of 1934, as amended, for a period ~~beginning~~ commencing on the date hereof and ending ~~on the date that is 90~~ 60 days ~~from~~ after the date of the ~~final prospectus relating~~ Company’s Prospectus first filed pursuant to Rule 424(b) under the ~~Public Offering~~ Act, inclusive (the “Lock-Up Period”), ~~the undersigned agrees that,~~ without the prior written consent of ~~Xxxxxx~~the Representative; provided, ~~Xxxxxxxx & Company~~however, ~~Incorporated, the undersigned will~~ that this provision shall not ~~offer, sell, contract to sell, pledge, lend, grant~~ restrict any ~~option to purchase, make~~ (x) open-end registered investment company from engaging in any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or transaction with respect to ~~which~~ Company Securities or (y) closed-end fund conducting periodic repurchases as required under Rule 23c-3 of the Investment Company Act of 1940, as amended, with respect to Company Securities; or (ii) exercise or seek to exercise or effectuate in any manner any rights of any nature that the undersigned has ~~beneficial ownership within~~ or may have hereafter to require the ~~rules and regulations~~ Company to register under the Act the undersigned’s sale, transfer or other disposition of any of the ~~Securities and Exchange Commission (collectively~~ Lock-Up Shares or other securities of the ~~“Undersigned's Shares”)~~Company held by the undersigned, or to otherwise participate as a selling securityholder in any manner in any registration effected by the Company under the Act, including under the Registration Statement, during the Lock-Up Period. The foregoing ~~restriction is~~ restrictions are expressly agreed to preclude the undersigned from engaging in any ~~hedging~~ hedging, collar (whether or not for any consideration) or other transaction that is designed to ~~result in,~~ or ~~that~~ reasonably ~~could be~~ expected to lead toor result in a Disposition of Lock-Up Shares during the Lock-Up Period, ~~a sale or disposition of the Undersigned’s Shares~~ even if such Lock-Up Shares would be disposed of by someone other than ~~the undersigned~~such holder. Such prohibited hedging or other transactions would include ~~without limitation~~ any short sale or any purchase, sale or grant of any right (including ~~without limitation~~ any put or call ~~option~~option or reversal or cancellation thereof) with respect to any ~~of the Undersigned’s~~ Lock-Up Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from ~~such~~ Lock-Up Shares. ~~In addition,~~ Notwithstanding the ~~undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not,~~ agreement not to make any Disposition during the Lock-Up Period, ~~make~~ you have agreed that the foregoing restrictions shall not apply to (i) the Company Securities being offered in the prospectus included in the Registration Statement, (ii) any ~~demand for~~vesting, settlement and tax withholding of equity-based awards outstanding on the date hereof and the Common Stock issued in connection with such vesting, settlement and tax withholding under the Company’s equity incentive plan or ~~exercise~~ any ~~right~~ other plan or agreement described in the Registration Statement, Time of Sale Information and the Prospectus, (iii) the entering into a written trading plan designed to comply with ~~respect to, the registration~~ Rule 10b5-1 of the ~~Undersigned’s Shares. Notwithstanding the foregoing~~Exchange Act, ~~the undersigned may,~~ provided that no sales are made pursuant to such trading plan during the Lock-Up Period, ~~transfer~~ provided that no filing or public announcement by any party under the ~~Undersigned’s Shares~~ Exchange Act or otherwise shall be required or shall be voluntarily made in connection with such trading plan, (iiv) if the undersigned is an individual, transfers as a bona fide gift or ~~gifts~~ gifts, (v) if the undersigned is an individual, transfers to a family member, trust, family limited partnership or family limited liability company for the direct or indirect benefit of the undersigned or his or her “immediate family” members as defined in Rule 16a-1 under the Exchange Act, (vi) transfers by ~~will, other testamentary document~~ testate or intestate ~~succession~~ succession, (vii) if the undersigned is a partnership, limited liability company, a corporation or trust, transfers to its limited partners, members, stockholders or beneficiaries as part of a distribution, or to any corporation, partnership or other entity that is its affiliate, (viii) to the ~~legal representative~~extent applicable, ~~heir~~if the undersigned is an individual, ~~beneficiary~~ transfers to the undersigned’s employer, if required by the terms of such individual’s employment, (ix) transfers for bona fide tax planning purposes, (x) to the undersigned’s affiliates; (xi) if the undersigned is a corporation, partnership or other entity, transfers to a ~~member~~ wholly owned subsidiary of such entity or (xii) any redemption pursuant to the provisions contained in the organizational documents of the ~~immediate family of~~ Operating Partnership or the ~~undersigned~~subsidiary partnerships, provided that ~~the donee or donees thereof agree~~ any Company Securities after such redemption shall be deemed to be ~~bound in writing by~~ Lock-Up Shares subject to the restrictions set forth ~~herein, (ii) to any trust~~in this Agreement during the Lock-Up Period, provided further that in each transfer pursuant to clauses (iv)-(xi) the ~~trustee of the trust~~ transferee agrees to be bound in writing by the ~~restrictions set forth herein~~terms of this Lock-Up Agreement prior to such transfer, ~~and provided further that any~~ such transfer shall not involve a disposition for ~~value~~value and no filing or public announcement by any party (donor, ~~[or] (iii~~donee, transferor or transferee) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act ~~of 1934, as amended (the “Exchange Act”), and no other public filing~~ or ~~report regarding such transfer~~ otherwise shall be required or shall be voluntarily made ~~during~~ in connection with such transfer (other than a filing on a Form 5 made after the expiration of the Lock-Up Period). ~~For purposes~~ It is understood that, if the Underwriting Agreement (other than the provisions thereof that survive termination) shall terminate or be terminated prior to payment for and delivery of the Shares, you will release the undersigned from the obligations under this letter agreement. In furtherance of the foregoing, the Company and its transfer agent and registrar are hereby authorized to decline to make any transfer of Lock-Up ~~Agreement~~Shares if such transfer would constitute a violation or breach of this letter. This letter shall be binding on the undersigned and the respective successors, ~~“immediate family” shall mean any relationship by blood~~heirs, ~~marriage or adoption, not more remote than first cousin. As~~ personal representatives and assigns of the ~~date hereof,~~ undersigned. Capitalized terms used but not defined herein have the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds respective meanings assigned to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined such terms in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).. Very truly yours,

Appears in 1 contract

Samples: Underwriting Agreement (NexPoint Real Estate Finance, Inc.)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering and sale of the Shares that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by any Underwriter’s investment banking division. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature Page Follows] Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the ~~Company, the Selling Stockholder~~ Company and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS, INC.~~ VOLITIONRX LIMITED /s/ ~~Xxxx X.~~ Xxxxxxx Xxxxxxxx Name~~: Xxxx X.~~ :Xxxxxxx Xxxxxxxx Title~~: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee~~ :CEO CONFIRMED as of the date first above mentioned, on behalf of the ~~Representatives~~ Representative and the other several Underwriters named in Schedule I hereto. ~~XXXXXX, XXXXXXXX~~ XXXXXXXXXXX & ~~COMPANY, INCORPORATED By: /s/ Xxxxx~~ CO. INC. By:/s/ Xxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule SCHEDULE I Name Number ~~ofFirm~~ of Firm Shares ~~Xxxxxx, Xxxxxxxx~~ Number of Additional Shares Xxxxxxxxxxx & ~~Company, Incorporated 975,000 Xxxxxxxx~~ Co. Inc. ~~975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule~~ 2,625,000 393,750 National Securities Corporation 875,000 131,250 Total 3,500,000 525,000 SCHEDULE II ~~Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx~~ Pricing Information ~~Number of~~ Price per share to the public: $2.40 Firm Shares: ~~3,250,000 Number of~~ 3,500,000 Additional Shares: ~~487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc.~~ 525,000 SCHEDULE III Persons Subject to Lock-Up up Xxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxx Xxxxx Xxxxx Xxxxx Xxxxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxxxxx Cotterford Company Limited Hever Investments Limited EXHIBIT A Form of Lock-up Agreement ~~XXXXXX~~__________, ~~XXXXXXXX~~ 2018 Xxxxxxxxxxx & ~~COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives~~ Co. Inc. as Representative of the Several Underwriters xc/~~x Xxxxxx~~o Oppenheimer & Co. Inc. 00 Xxxxx Xxxxxx Xxx Xxxx, ~~Xxxxxxxx & Company, Incorporated~~ Xxx ~~Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx~~ Xxxx 00000 Re~~: Heartland Express, Inc. - Lock-Up Agreement~~ :Public Offering of VolitionRx Limited Ladies and Gentlemen: ~~The undersigned, an officer and/or director of Heartland Express, Inc.~~This Letter Agreement is being delivered to you, a ~~Nevada~~ holder of common stock, par value $0.001 per share (“Common Stock”), or rights to acquire Common Stock, of VolitionRx Limited, a Delaware corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, in connection with the ~~“Representatives”) propose to enter into an~~ proposed Underwriting Agreement (the “~~Underwriting~~ Agreement”)) to be entered into by and between the Company and Xxxxxxxxxxx & Co. Inc., ~~on behalf~~ as representative (the “Representative”) of the several ~~Underwriters~~ underwriters named in Schedule I to ~~such agreement~~ the Agreement (~~collectively,~~ the “Underwriters,” or each, an “Underwriter”), with respect to the proposed public offering of securities of the Company ~~and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ (the “~~Selling Stockholder~~Securities”~~), providing for~~ ) pursuant to a ~~public offering~~ registration statement (the “~~Public~~ Registration Statement”) on Form S-3 (File No. 333-206781; the “Offering”~~) of Shares (as defined in the Underwriting Agreement~~). In consideration of the Underwriters’ agreement by to enter into the ~~Underwriters~~ Agreement and to ~~offer and sell~~ proceed with the ~~Shares~~Offering of the Securities, and of for other good and valuable ~~consideration the~~ consideration, receipt ~~and sufficiency~~ of which is hereby acknowledged, the undersigned hereby agrees for the benefit of the Company and the Underwriters that, without the prior written consent of the Representative, the undersigned will not, during the period ~~beginning on the date hereof and~~ ending ~~on the date that is~~ 90 days ~~from the date of the final prospectus relating to the Public Offering~~ (the “Lock-Up Period”) after the date of the prospectus supplement relating to the Offering (the “Prospectus Supplement”), directly or indirectly (1) offer, pledge, assign, encumber, announce the ~~undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer~~intention to sell, sell, contract to sell, ~~pledge~~sell any option or contract to purchase, ~~lend~~purchase any option or contract to sell, grant any ~~option~~ option, right or warrant to purchase, ~~make any short sale~~ or otherwise transfer or dispose ~~of any shares of the Company’s Common Stock~~of, ~~par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase~~ any shares of Common ~~Stock,~~ Stock or any securities convertible ~~into,~~ into or exercisable or exchangeable for Common Stock owned either of record or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members beneficially (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) by the undersigned on the date hereof or hereafter acquired or (2) enter into any swap or other agreement that transfers, ~~and~~ in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, or publicly announce an intention to do any of the foregoing. In addition, the undersigned agrees that, without the prior written consent of the Representative, it will not, during the period ending 90 days after the date of the Prospectus Supplement, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The limitations set forth in the foregoing paragraph shall not apply to (a) transactions relating to shares of Common Stock or other securities acquired in the Offering or in open market transactions after the completion of the Offering, provided that no ~~other public~~ filing ~~or report regarding such transfer~~ under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made ~~during~~ in connection with subsequent sales of Common Stock or other securities acquired in the ~~Lock-Up Period. For~~ Offering or in such open market transactions; (b) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock (i) as a bona fide gift or for bona fide estate planning purposes, (ii) upon death or by will, testamentary document or intestate succession, (iii) to an immediate family member of the undersigned or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this ~~Lock-Up Agreement~~agreement, “immediate family” shall mean any relationship by blood, current or former marriage or adoption, not more remote than first cousin~~. As~~ ), (iv) not involving a change in beneficial ownership, (v) if the undersigned is a trust, to any beneficiary of the ~~date hereof~~undersigned or the estate of any such beneficiary, or (vi) to a charity or educational institution; (c) distributions or transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to stockholders, direct or indirect affiliates (within the ~~Undersigned’s Shares are not~~meaning set forth in Rule 405 under the Securities Act of 1933, ~~and~~ as amended), current or former partners (general or limited), members or managers of the undersigned, as applicable, or to the estates of any such stockholders, affiliates, partners, members or managers; (d) sales under any existing Rule 10b5-1 plan or the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the ~~duration~~ transfer of ~~this~~ shares of Common Stock, provided that with respect to the establishment of a plan (i) such plan does not provide for the transfer of shares of Common Stock during the Lock-Up ~~Agreement~~ Period and (ii) no public announcement or filing under the ~~Undersigned’s Shares will not be, pledged, hypothecated,~~ Exchange Act regarding the establishment of such plan shall be required or ~~granted as collateral~~ shall be voluntarily made by or ~~security for any obligation. [In addition, notwithstanding~~ on behalf of the ~~foregoing,~~ undersigned or the Company during the Lock-Up Period; and (e) sales of Common Stock pursuant to the terms of the Agreement, provided, in the case of clauses (b)-(c), that such transfer shall not involve a disposition for value and the transferee agrees in writing with the Underwriters and the Company to be bound by the terms hereof. Moreover, the ~~undersigned may sell~~ foregoing restrictions shall not apply to (i) the exercise of stock options or ~~otherwise dispose~~ other equity awards granted pursuant to the Company’s equity incentive plans prior to the date of the ~~Undersigned’s Shares for~~ Prospectus Supplement; (ii) cashless “net” exercises of options and warrants held by the ~~purpose of raising proceeds to cover or otherwise satisfying~~ undersigned; and (iii) the ~~reasonably estimated U.S. federal or state tax liability incurred~~ receipt by the undersigned ~~as a result~~ of any securities of the ~~vesting~~Company directly from the Company, ~~during the Lock-Up Period~~including, ~~of restricted~~ but not limited to, shares of Common Stock ~~outstanding on the date hereof~~ and stock options granted pursuant to ~~stock plans disclosed in~~ the ~~Time~~ Company’s equity incentive plans, and warrants exercisable for securities of ~~Sale Information (as defined in~~ the ~~Underwriting Agreement),~~ Company; provided that ~~each~~ any securities of the Company issued upon exercise thereof shall continue to be subject to the terms of this Letter Agreement. In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer ~~shall occur on~~ would constitute a violation or ~~about~~ breach of this Letter Agreement. The undersigned hereby represents and warrants that the ~~time~~ undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred and any obligations of ~~such vesting and~~ the undersigned shall be ~~of an amount~~ binding upon the successors, assigns, heirs or personal representatives of the ~~Undersigned’s Shares that raises gross proceeds~~ undersigned. The undersigned understands that, ~~as nearly as reasonably practicable, approximate such tax liability, and provided further that~~ if the ~~undersigned is required~~ Agreement does not become effective, or if the Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to ~~make a filing under the Exchange Act reporting a reduction in beneficial ownership~~ payment for and delivery of the ~~Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition~~Common Stock to be sold thereunder, the undersigned shall ~~include a statement~~ be released from all obligations under this Letter Agreement. The undersigned, whether or not participating in ~~such report~~ the Offering, understands that the Underwriters are entering into the Agreement and proceeding with the Offering in reliance upon this Letter Agreement. This Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the ~~effect that the purpose~~ conflict of ~~such sale or~~ laws principles thereof (other ~~disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD~~than New York General Obligations Law § 5-1401). Very truly yours, [STOCKHOLDER] By:_____________________________________ Name: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Title:

Appears in 1 contract

Samples: Underwriting Agreement (Volitionrx LTD)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that (a) the ~~Underwriters’~~ Underwriter’s research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the ~~Underwriters’~~ Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the ~~Underwriters~~ Underwriter with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the ~~Underwriters’~~ Underwriter’s independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or by the ~~Selling Stockholder by any~~ Underwriter’s investment banking division. The Company ~~and~~ acknowledges that the ~~Selling Stockholder acknowledge that each of the Underwriters~~ Underwriter is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ If the foregoing correctly sets forth the ~~agreement~~ understanding between the Underwriter and the Company, please so indicate in the ~~Selling Stockholder and the several Underwriters~~space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us. Very truly yours, ~~HEARTLAND EXPRESS~~ECO-STIM ENERGY SOLUTIONS, INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX INC. By: /s/ J. Cxxxx Xxxxxxx ~~Xxxxxx Authorized Representative XXXXX FARGO SECURITIES~~Name: J. Cxxxx Xxxxxxx Title: President and CEO Accepted on the date first above written. RXXX CAPITAL PARTNERS, LLC By: /s/ ~~Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division~~ Axxxx Xxxxxxxx Name: Axxxx Xxxxxxxx Title: Head of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Equity Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit Markets Signature Page to Underwriting Agreement EXHIBIT A ~~[SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc.~~ Lock-Up Agreement ~~XXXXXX~~___________ __, ~~XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities~~201_ Rxxx Capital Partners, LLC ~~BB&T Capital Markets~~800 Xxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxx, ~~a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx~~ XX 00000 ReAttn: ~~Heartland Express, Inc. - Lock-Up Agreement~~ Managing Director Ladies and Gentlemen: The ~~undersigned~~undersigned understands that Rxxx Capital Partners, LLC (the “Underwriter”) proposes to enter into an ~~officer and/or director of Heartland Express~~Underwriting Agreement (the “Underwriting Agreement”) with Eco-Stim Energy Solutions, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a the public offering (the “Public Offering”) by the Underwriter of ~~Shares~~ __________ shares of common stock (~~as defined in~~ “Firm Shares”), par value $0.001 per share, of the ~~Underwriting Agreement~~Company (the “Shares”). ~~In consideration of~~ To induce the ~~agreement by~~ Underwriter to continue its efforts in connection with the ~~Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged~~Public Offering, the undersigned hereby agrees that, without the prior written consent of the Underwriter, it will not, during the period ~~beginning~~ commencing on the date hereof and ending ~~on the date that is 90~~ 180 days ~~from~~ after the date of the final prospectus (the “Prospectus”) relating to the Public Offering (the “Lock-Up Period”), ~~the undersigned agrees that~~(1) offer, ~~without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer~~pledge, sell, contract to sell, ~~pledge~~grant, lend, ~~grant any option to purchase, make any short sale~~ or otherwise transfer or dispose of of, directly or indirectly, any ~~shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock,~~ Shares or any securities convertible ~~into,~~ into or exercisable or exchangeable for Shares, or ~~that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned~~ (~~including holding as a custodian~~2) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in enter into any ~~hedging~~ swap or other ~~transaction~~ arrangement that ~~is designed~~ transfers to ~~result in~~another, in whole or ~~that reasonably could be expected to lead to~~in part, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the ~~Undersigned’s~~ economic consequences of ownership of the Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Shares or ~~with respect to any security that includes~~such other securities, ~~relates to~~ in cash or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Sharesotherwise. Notwithstanding the foregoing, the undersigned ~~may, during~~ may transfer Shares without the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member prior consent of the ~~immediate family~~ Underwriter in connection with (a) transactions relating to Shares or other securities acquired in open market transactions after the completion of the ~~undersigned~~Public Offering, provided that ~~the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii~~no filing under Section 16(a) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of Shares or other securities acquired in such open market transactions, (b) if the undersigned is an individual, transfers of Shares or any security convertible into Shares as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter agreement and (ii) no ~~other public~~ filing ~~or report regarding such transfer~~ under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the Lock-Up up Period, (c) transfer of Shares to a charity or educational institution, (d) if the undersigned is, or directly or indirectly controls, a corporation, partnership, limited liability company or other business entity, any transfers of Shares to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned, as the case may be, if, in any such case, such transfer is not for value, or (e) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer of Shares made by the undersigned (i) in connection with the sale or other bona fide transfer in a single transaction of all or substantially all of the undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigned’s assets, in any such case not undertaken for the purpose of avoiding the restrictions imposed by this agreement or (ii) to another corporation, partnership, limited liability company or other business entity so long as the transferee is an affiliate of the undersigned and such transfer is not for value. ~~For purposes~~ Notwithstanding the foregoing, if (x) the Company issues an earnings release or material news, or a material event relating to the Company occurs, during the last 17 days of ~~this~~ the Lock-Up ~~Agreement~~Period, ~~“immediate family” shall mean any relationship by blood, marriage~~ or ~~adoption, not more remote than first cousin. As~~ (y) prior to the expiration of the ~~date hereof, the Undersigned’s Shares are not, and for the duration of this~~ Lock-Up ~~Agreement~~ Period, the ~~Undersigned’s Shares~~ Company announces that it will ~~not be~~release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, ~~pledged~~the restrictions imposed by this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, ~~hypothecated, or granted as collateral or security for any obligation~~unless the Underwriter waives such extension in writing. [In addition, ~~notwithstanding~~ the ~~foregoing,~~ undersigned agrees that during the Lock-Up Period, without the ~~undersigned may sell or otherwise dispose~~ prior written consent of the ~~Undersigned~~Underwriter, it will not make any demand for or exercise any right with respect to the registration of any Shares or any security convertible into or exercisable or exchangeable for Shares. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares ~~for~~ except in compliance with this Agreement. No provision in this agreement shall be deemed to restrict or prohibit the ~~purpose of raising proceeds to cover~~ exercise or ~~otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred~~ exchange by the undersigned ~~as a result~~ of any option or warrant to acquire Shares, or securities exchangeable or exercisable for or convertible into Shares, provided that the ~~vesting,~~ undersigned does not transfer the Shares acquired on such exercise or exchange during the Lock-Up Period, ~~of restricted shares of Common Stock outstanding on the date hereof~~ unless otherwise permitted pursuant to ~~stock plans disclosed in~~ the ~~Time~~ terms of ~~Sale Information~~ this letter agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a so-called “10b5-1” plan at any time (~~as defined in~~ other than the ~~Underwriting Agreement), provided that each such transfer shall occur on~~ entry into or ~~about the time~~ modification of such ~~vesting and shall be~~ a plan in such a manner as to cause the sale of ~~an amount of the Undersigned’s~~ any Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s or any securities convertible into or exercisable or exchangeable for Shares ~~during~~ within the Lock-Up ~~Period as a result of such sale or disposition, the~~ Period). The undersigned ~~shall include a statement in such report to the effect~~ understands that the ~~purpose of such sale or other disposition was to cover tax obligations~~ Company and the Underwriter are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned ~~in connection with the vesting of~~ further understands that this agreement is irrevocable and shall be binding upon the undersigned’s ~~restricted shares~~ heirs, legal representatives, successors and assigns. The undersigned understands that, if the Underwriting Agreement is not executed by ____________, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of ~~Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx~~the Shares to be sold thereunder this agreement shall be void and of no further force or effect. Whether or not the Public Offering actually occurs depends on a number of factors, ~~who serves as trustee~~ including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of ~~several GRATs established by his mother~~which are subject to negotiation between the Company and the Underwriter. Very truly yours, ~~Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares~~ (Name): (Address) Signature Page to ~~her or to other trusts set up for her benefit, which would be covered by clause (ii).~~Underwriting Agreement

Appears in 1 contract

Samples: Underwriting Agreement (Eco-Stim Energy Solutions, Inc.)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that (ai) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (bii) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by any Underwriter’s investment banking division. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the ~~Company, the Selling Stockholder~~ Company and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS~~BIOTIME, INC. By: /s/ ~~Xxxx X. Xxxxxxx~~ Rxxxxxx Xxxxxxxx Name: ~~Xxxx X. Xxxxxxx~~ Rxxxxxx Xxxxxxxx Title: ~~Executive Vice President of Finance and~~ Chief Financial Officer ~~SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee~~ CONFIRMED as of the date first above mentioned, on behalf of the ~~Representatives~~ Representative and the other several Underwriters named in Schedule I hereto. ~~XXXXXX~~RXXXXXX JXXXX & ASSOCIATES, ~~XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. By: /s/ ~~Xxxxxxx~~ Ex Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule -33- SCHEDULE I Name Number ~~ofFirm~~ Firm Shares ~~Xxxxxx~~Rxxxxxx Jxxxx & Associates, ~~Xxxxxxxx~~ Inc. 6,250,000 Ladenburg Txxxxxxx & ~~Company, Incorporated 975,000 Xxxxxxxx~~ Co. Inc. ~~975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T~~ 1,923,077 Chardan Capital Markets, ~~a division of BB&T Securities~~LLC 961,539 LifeSci Capital, LLC ~~650,000~~ 480,769 Total: ~~3,250,000 Schedule~~ 9,615,385 SCHEDULE II Issuer Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressProspectus None. SCHEDULE III Persons Subject to Lock-up Nxxx Xxxxxxxx Axx Xxxxxxx Mxxxxxx X. Xxxx Rxxxxxx Xxxxxxxx Fxxxxxxx Xxxxxxx Jxx Xxxxxx Axxxxx X. Xxxxxxxx Dxxxxxx Xxxxxxx Sxxxxxx X. Xxxxxxx Mxxxxxx Xxxxxx Axxxx X. Xxxxxxx Dxxxx Xxxxxxxxx Sxxxxxxx Xxxxxx Broadwood Capital, Inc. Broadwood Partners L.P. Greenbelt Corp. Greenway Partners, L.P. EXHIBIT A Form of Lock-Up up Agreement ~~XXXXXX~~_______, ~~XXXXXXXX~~ 2017 BioTime, Inc. 1000 Xxxxxxxx Xxxxxx, #000 Xxxxxxx, Xxxxxxxxxx 00000 RXXXXXX JXXXX & ~~COMPANY~~ASSOCIATES, ~~INCORPORATED XXXXXXXX~~ INC. ~~Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC~~ As ~~Representatives~~ Representative of the Several Underwriters xc/~~x Xxxxxx~~o Raymond Jxxxx & Associates, Inc. 800 Xxxxxxxx ~~& Company~~Xxxxxxx Xx. Xxxxxxxxxx, ~~Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx~~ XX 00000 Re: ~~Heartland Express~~BioTime, Inc. ~~- Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation~~ (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, ) - Restriction on Stock Sales Dear Sirs: This letter is delivered to you pursuant to the ~~“Representatives”) propose to enter into an~~ Underwriting Agreement (the “Underwriting Agreement”)) to be entered into by the Company, ~~on behalf~~ as issuer, and Rxxxxxx Jxxxx & Associates, Inc., the representative (the “Representative”) of ~~the several Underwriters named in Schedule I to such agreement~~ certain underwriters (~~collectively,~~ the “Underwriters”)) to be named therein. Upon the terms and subject to the conditions of the Underwriting Agreement, ~~with~~ the Underwriters intend to effect a public offering of Common Stock, no par value per share, of the Company ~~and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ (the “~~Selling Stockholder~~Shares”), ~~providing for a public offering~~ as described in and contemplated by the registration statement of the Company on Form S-3, File No. 333-217182 (the “~~Public~~ Registration Statement”), as filed with the Securities and Exchange Commission on May 2, 2017 (the “Offering”) ). The undersigned recognizes that it is in the best financial interests of ~~Shares~~ the undersigned, as an officer or director, or an owner of stock, options, warrants or other securities of the Company (the “Company Securities”), that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or may be, subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as ~~defined in~~ an inducement to the Underwriters to execute the Underwriting Agreement~~). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged~~, the undersigned hereby acknowledges and agrees ~~that, during the period beginning on the date hereof and ending on the date~~ that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not (i) offer, sell, contract to sell, pledge, ~~lend,~~ grant any option to ~~purchase, make any short sale~~ purchase or otherwise dispose of (collectively, a “Disposition”) any ~~shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock~~Company Securities, or any securities convertible ~~into~~into or exercisable or exchangeable for, ~~exchangeable for~~ or any rights to purchase or otherwise acquire, any Company Securities held by the undersigned or acquired by the undersigned after the date hereof, or that ~~represent the right~~ may be deemed to ~~receive shares of Common Stock, whether now~~ be beneficially owned ~~or hereinafter acquired, owned directly~~ by the undersigned (~~including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively~~ collectively, the “~~Undersigned's~~ Lock-Up Shares”)~~. The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in~~, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession pursuant to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, Rules and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 Regulations promulgated under the Securities Act of 1933, as amended (the “~~Securities~~ Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), for a period commencing on the date hereof and no ending 90 days after the date of the final prospectus supplement filed pursuant to Rule 424(b) under the Act relating to the Offering, inclusive (the “Lock-Up Period”), without the prior written consent of the Representative or (ii) exercise or seek to exercise or effectuate in any manner any rights of any nature that the undersigned has or may have hereafter to require the Company to register under the Act the undersigned’s sale, transfer or other ~~public filing~~ disposition of any of the Lock-Up Shares or ~~report regarding such transfer shall be required~~ other securities of the Company held by the undersigned, or ~~shall be voluntarily made~~ to otherwise participate as a selling securityholder in any manner in any registration effected by the Company under the Act, including under the Registration Statement, during the Lock-Up Period. ~~For purposes~~ The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging, collar (whether or not for any consideration) or other transaction that is designed to or reasonably expected to lead or result in a Disposition of ~~this~~ Lock-Up ~~Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s~~ Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, even if such Lock-Up Shares would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include any short sale or any purchase, sale or grant of any right (including any put or call option or reversal or cancellation thereof) with respect to any Lock-Up Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Lock-Up Shares. Notwithstanding the ~~undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds~~ agreement not to ~~cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting,~~ make any Disposition during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect you have agreed that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).foregoing restrictions shall not apply to:

Appears in 1 contract

Samples: Underwriting Agreement (Biotime Inc)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that ~~(a)~~ the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal ~~policies~~ policies, and ~~(b) the~~ that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the ~~Company, the value of the Common Stock~~ Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ the Company may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by ~~the Underwriters’~~ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by ~~any Underwriter’s~~ such Underwriters’ investment banking ~~division~~divisions. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as ~~such,~~ such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that ~~are~~ may be the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ If the foregoing correctly sets forth the ~~agreement between~~ understanding among the Company, the ~~Selling Stockholder~~ Operating Partnership and the ~~several~~ Underwriters, please so indicate in the space provided below for the purpose, whereupon this Agreement shall constitute a binding agreement among the Company, the Operating Partnership and the Underwriters. Very truly yours, ~~HEARTLAND EXPRESS~~MERUELO XXXXXX PROPERTIES, INC. ~~/s/ Xxxx X. Xxxxxxx~~ By: Name: ~~Xxxx X. Xxxxxxx~~ Title: ~~Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER~~MERUELO XXXXXX PROPERTIES, L.P. By: ~~2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx~~ MERUELO XXXXXX PROPERTIES, INC. General Partner By: Name: ~~Xxxxxxxx X. Xxxxxx~~ Title: ~~Trustee CONFIRMED~~ Accepted and agreed to as of the date first above ~~mentioned~~written: FRIEDMAN, ~~on behalf~~ BILLINGS, XXXXXX & CO., INC. UBS SECURITIES LLC For themselves and as Representatives of the ~~Representatives and the~~ other ~~several~~ Underwriters named in on Schedule I hereto. ~~XXXXXX, XXXXXXXX & COMPANY, INCORPORATED~~ By: ~~/s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ FRIEDMAN, BILLINGS, XXXXXX & CO., INC. By: ~~/s/ Xxxxxxx~~ Name: Title: SCHEDULE I Underwriter Number of Initial Shares to be Purchased Friedman, Billings, Xxxxxx ~~Authorized Representative XXXXX FARGO SECURITIES~~& Co., Inc. UBS Securities LLC By: /s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T KeyBanc Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, McDonald Investments Inc. ~~Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T~~ RBC Capital ~~Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx,~~ Markets Corporation Xxxxxxxx & Company, ~~Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express,~~ Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Xxxxxxx Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Inc.

Appears in 1 contract

Samples: Underwriting Agreement (Meruelo Maddux Properties, Inc.)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by any Underwriter’s investment banking division. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the ~~Company, the Selling Stockholder~~ Company and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS~~Avenue Therapeutics, Inc. Name: Lxxx Xx President and Chief Executive Officer Confirmed: OXXXXXXXXXX & CO. INC. /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance and Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned, Acting severally on behalf of itself and as representative of the ~~Representatives and the other~~ several Underwriters named in Schedule I annexed hereto. ~~XXXXXX, XXXXXXXX~~ By OXXXXXXXXXX & ~~COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ CO. INC. ByBy Title: ~~/s/ Xxxxxxx Xxxxxx Authorized Representative XXXXX FARGO SECURITIES, LLC By~~SCHEDULE I Number Name Firm Shares Oxxxxxxxxxx & Co. Inc. National Securities Corp. Total: ~~/s/ Xxxxx Xxxxxx Authorized Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx~~ SCHEDULE II Issuer Free Writing Prospectus SCHEDULE III Persons Subject to Lock-up Lxxx Xx Mxxxxxx X. Xxxxx ~~Authorized Representative Xxxxxxx~~ Lxxxxxx X. Xxxxxxxxx Dxxxx X. Xxxxx ~~Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx,~~ Sxxxx X. Xxxxxx Nxxx Xxxxxxxxxx Jxxxxxx Xxxxx Axxxxx Xxxxx Jxx Xxxxxxxx & Company, Incorporated 975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T Capital Markets, a division of BB&T Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland ExpressFortress Biotech, Inc. ~~Lock~~EXHIBIT A FORM OF LOCK-~~Up Agreement XXXXXX~~UP AGREEMENT June [ ], ~~XXXXXXXX~~ 2017 Oxxxxxxxxxx & ~~COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives~~ Co. Inc. as Representative of the Several Underwriters xc/~~x Xxxxxx~~o Oppenheimer & Co. Inc. 80 Xxxxx Xxxxxx Xxx Xxxx, ~~Xxxxxxxx & Company, Incorporated~~ Xxx ~~Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx~~ Xxxx 00000 Re: ~~Heartland Express~~Public Offering of Avenue Therapeutics, Inc. ~~- Lock-Up Agreement~~ Ladies and Gentlemen: The undersigned, ~~an officer and/or director~~ a holder of ~~Heartland Express~~common stock, ~~Inc.~~par value $0.0001 per share (“Common Stock”), ~~a Nevada corporation~~ or rights to acquire Common Stock, of Avenue Therapeutics, Inc. (the “Company”), ~~or one of its subsidiaries,~~ understands that ~~Xxxxxx~~you, ~~Xxxxxxxx & Company~~as Representative of the several Underwriters, ~~Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”)~~ propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)) with the Company, ~~on behalf of~~ providing for the public offering (the “Offering”) by the several Underwriters named in Schedule I to ~~such agreement~~ the Underwriting Agreement (~~collectively,~~ the “Underwriters”), ~~with~~ of securities of the Company ~~and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ (the “~~Selling Stockholder”), providing for a public offering (the “Public Offering~~Securities”) ~~of Shares~~ pursuant to registration statement on Form S-1 (as File No. 333-217552). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement). In consideration of the Underwriters’ agreement by to enter into the ~~Underwriters~~ Underwriting Agreement and to ~~offer and sell~~ proceed with the ~~Shares~~Offering of the Securities, and of for other good and valuable ~~consideration the~~ consideration, receipt ~~and sufficiency~~ of which is hereby acknowledged, the undersigned hereby agrees for the benefit of the Company, you and the other Underwriters that, ~~during~~ without the ~~period beginning~~ prior written consent of Oxxxxxxxxxx & Co. Inc. on behalf of the Underwriters (the “Representative”), the undersigned will not, from the date hereof ~~and~~ through the period ending ~~on the date that is 90~~ 180 days ~~from the date of the final prospectus relating to the Public Offering~~ (the “Lock-Up Period”) following the date of the prospectus supplement relating to the Offering (the “Prospectus”), directly or indirectly, unless otherwise provided herein, (1) offer, pledge, assign, encumber, announce the ~~undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer~~intention to sell, sell, contract to sell, ~~pledge~~sell any option or contract to purchase, ~~lend~~purchase any option or contract to sell, grant any ~~option~~ option, right or warrant to purchase, ~~make any short sale~~ or otherwise transfer or dispose ~~of any shares of the Company’s Common Stock~~of, ~~par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase~~ any shares of Common ~~Stock,~~ Stock of the Company or any securities convertible ~~into,~~ into or exercisable or exchangeable for Common Stock owned either of record or beneficially (as defined in the Securities Exchange Act of 1934, as amended) by the undersigned on the date hereof or hereafter acquired or (2) enter into any swap, hedge or other agreement that ~~represent~~ transfers, in whole or in part, any of the ~~right to receive shares~~ economic consequences of ownership of the Common Stock, whether ~~now owned or hereinafter acquired, owned directly by the undersigned~~ any such transaction described in clause (~~including holding as a custodian~~1) or ~~with respect~~ (2) above is to ~~which the undersigned has beneficial ownership within the rules and regulations~~ be settled by delivery of ~~the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging~~ Common Stock or such other securities, in ~~any hedging~~ cash or ~~other transaction that is designed to result in~~otherwise, or ~~that reasonably could be expected~~ publicly announce an intention to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to do any of the ~~Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares~~foregoing. In addition, the undersigned agrees that, without the prior written consent of ~~Xxxxxx~~the Representative, ~~Xxxxxxxx & Company, Incorporated, the undersigned~~ it will not, during the Lock-Up Period, make any demand ~~for,~~ for or exercise any right with respect to, the registration of ~~the Undersigned’s Shares~~any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. ~~Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares~~ The foregoing shall not apply to (ix) Common Stock to be transferred as a bona fide gift or gifts (provided that any donee thereof agrees in writing to be bound by the terms hereof), (y) the transfer of Common Stock or ~~by will, other testamentary document~~ any security exercisable or ~~intestate succession~~ convertible for Common Stock (1) to any trust for the ~~legal representative, heir, beneficiary~~ direct or ~~a member~~ indirect benefit of the undersigned or the immediate family of the undersigned, ~~provided that~~ (2) if the ~~donee~~ undersigned is a corporation, partnership, limited liability company, trust or ~~donees thereof agree to be bound in writing by the restrictions set forth herein,~~ other business entity (iiA) to ~~any trust~~another corporation, ~~provided~~ partnership, limited liability company, trust or other business entity that ~~the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve~~ is a ~~disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned~~ direct or ~~the undersigned’s family members~~ indirect affiliate (as defined in ~~Section A.1(a)(5) of the General Instructions S-8~~ Rule 405 promulgated under the Securities Act of 1933, as amended (the “Securities Act”)~~), provided that~~ ) of the ~~entity agrees to be bound in writing by the restrictions set forth herein, [~~undersigned or (ivB) to ~~a member~~ limited partners, limited liability company members or stockholders of the undersigned~~’s immediate family~~, ~~provided~~ (3) if the undersigned is a trust, to the beneficiary of such trust, (4) by testate succession or intestate succession, (5) by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement, or (6) pursuant to the Underwriting Agreement; provided, in the case of clauses (1)-(5), that ~~the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any~~ such transfer shall not involve a disposition for ~~value] 1; provided~~value and the transferee agrees in writing with the Underwriters and the Company to be bound by the terms of this Letter Agreement, ~~however, that it shall be~~ and (z) the establishment of a ~~condition of transfers~~ trading plan pursuant to ~~clauses (i)~~Rule 10b5-1 under the Exchange Act for the transfer of Common Stock, ~~(ii) or (iii) above~~ provided that such ~~transfers are~~ plan does not ~~required to be reported and are not voluntarily reported with~~ provide for the ~~Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16~~ transfer of ~~the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made~~ Common Stock during the Lock-Up ~~Period~~Period and no public announcement or filing under the Exchange Act regarding the establishment of such plan is required or voluntarily made by or on behalf of the undersigned or the Company. ~~For purposes~~ If the undersigned is an officer or director of ~~this~~ the Company, the undersigned further agrees that the foregoing restrictions shall be equally applicable to any issuer-directed shares of Common Stock the undersigned may purchase in the Offering. Notwithstanding the foregoing, if (x) during the last 17 days of the Lock-Up ~~Agreement, “immediate family” shall mean any relationship by blood, marriage~~ Period the Company issues an earnings release or ~~adoption, not more remote than first cousin. As~~ material news or a material event relating to the Company occurs; or (y) prior to the expiration of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the ~~undersigned may sell or otherwise dispose~~ Company announces that it will release earnings results during the 16-day period beginning on the last day of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, ; the restrictions imposed in this Letter Agreement shall continue to apply until the expiration of ~~restricted shares of Common Stock outstanding~~ the 18-day period beginning on the ~~date hereof pursuant to stock plans disclosed in~~ issuance of the ~~Time~~ earnings release or the occurrence of ~~Sale Information (~~the material news or material event; provided, however, that this sentence shall not apply if the research published or distributed on the Company is compliant under Rule 139 of the Securities Act and the Company’s securities are actively traded as defined in Rule 101(c)(1) of Regulation M of the Exchange Act. In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement. The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned. The undersigned understands that, if the Underwriting ~~Agreement)~~Agreement does not become effective, ~~provided that each such transfer~~ or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall ~~occur on~~ terminate or ~~about the time of such vesting~~ be terminated prior to payment for and ~~shall be of an amount~~ delivery of the ~~Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required~~ Securities to ~~make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition~~be sold thereunder, the undersigned shall ~~include a statement~~ be released from all obligations under this Letter Agreement. The undersigned, whether or not participating in ~~such report~~ the Offering, understands that the Underwriters are entering into the Underwriting Agreement and proceeding with the Offering in reliance upon this Letter Agreement. This Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the ~~effect that the purpose~~ conflict of ~~such sale or~~ laws principles thereof (other ~~disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD~~than New York General Obligations Law § 5-1401). Very truly yours, STOCKHOLDER By: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).Name: Title:

Appears in 1 contract

Samples: Underwriting Agreement (Avenue Therapeutics, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Adma Biologics, Inc.)

Research Analyst Independence. The Company and the ~~Selling Stockholder~~ Operating Company acknowledge that (a) the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies and (b) the Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering that differ from the views of their respective investment banking divisions. The Company and the ~~Selling Stockholder~~ Operating Company hereby waive and release, to the fullest extent permitted by law, any claims that ~~they~~ it may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by the Underwriters’ independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or and the ~~Selling Stockholder~~ Operating Company by any Underwriter’s investment banking division. The Company and the ~~Selling Stockholder~~ Operating Company acknowledge that each of the Underwriters is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that are the subject of the transactions contemplated by this Agreement. [Signature page follows.] Please confirm that the foregoing correctly sets forth the agreement ~~between~~ among the Company, the ~~Selling Stockholder~~ Operating Company, the Manager and the several Underwriters. Very truly yours, ~~HEARTLAND EXPRESS~~JXXXXXXX CAPITAL, INC. By: /s/ ~~Xxxx X. Xxxxxxx~~ Dxxx Xxxxxxxx Name: ~~Xxxx X. Xxxxxxx~~ Dxxx Xxxxxxxx Title: Chief Executive ~~Vice President of Finance and Chief Financial~~ Officer ~~SELLING STOCKHOLDER~~JXXXXXXX CAPITAL OPERATING COMPANY, LLC By: ~~2009 Xxxxxx Heartland Trust UTA 7/15/2009~~ Jxxxxxxx Capital, Inc., its managing member By: /s/ Dxxx Xxxxxxxx ~~X. Xxxxxx~~ Name: Dxxx Xxxxxxxx ~~X. Xxxxxx~~ Title: ~~Trustee~~ Chief Executive Officer JCAP ADVISORS, LLC By: /s/ Dxxx Xxxxxxxx Name: Dxxx Xxxxxxxx Title: Chief Executive Officer CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. ~~XXXXXX~~RXXXXXX JXXXX & ASSOCIATES, ~~XXXXXXXX & COMPANY, INCORPORATED By: /s/ Xxxxx Xxxxxxx Authorized Representative XXXXXXXX~~ INC. By: /s/ ~~Xxxxxxx Xxxxxx~~ Jxxxx Xxxxx Authorized Representative ~~XXXXX FARGO SECURITIES,~~ JXXXXXXXX LLC By: /s/ ~~Xxxxx~~ Jxxx Xxxxxx Authorized Representative ~~Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T SECURITIES, LLC By: /s/ Xxxxxxx X. Xxxxx Authorized Representative Xxxxxxx X. Xxxxx Managing Director US 3297123v.16 Schedule~~ SCHEDULE I Name Number ~~ofFirm~~ Firm Shares ~~Xxxxxx~~Rxxxxxx Jxxxx & Associates, ~~Xxxxxxxx~~ Inc. 993,750 Jxxxxxxxx LLC 993,750 Rxxxxx X. Xxxxx & ~~Company,~~ Co. Incorporated ~~975,000 Xxxxxxxx Inc. 975,000 Xxxxx Fargo Securities, LLC 650,000 BB&T~~ 397,500 FBR Capital ~~Markets, a division of BB&T Securities, LLC 650,000~~ Markets & Co. 265,000 Total: ~~3,250,000 Schedule II~~ 2,650,000 Issuer Free Writing ~~Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx~~ Prospectus None. Pricing Information Number of Firm Shares: ~~3,250,000~~ 2,650,000 Number of Additional Shares: ~~487,500~~ 397,500 Public Offering ~~Price~~Price per Share: $~~23.75~~ 19.00 Discount per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities, LLC BB&T Capital Markets, a division of BB&T Securities, LLC As Representatives of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 ReShare: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other 5.25%1 1 Other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted 28,815 shares of Common Stock ~~outstanding on~~ to be purchased from the ~~date hereof pursuant~~ Company at a price of $19.00 per share. SCHEDULE III Persons Subject to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-~~Up Period as a result of such sale or disposition~~up JCAP Advisors, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for LLC Dxxx Xxxxxxxx Mxxx X. Xxxxxx Hxxxxx X. Silver Hxxxx X. Xxxx W1 Capital, LLC Jxxx X. Good Wxxxxxx X. Xxxxxxxx Jxxxx Xxxxxxx ~~X. Xxxxxx~~Highland Capital Management Fund Advisors, ~~who serves as trustee of several GRATs established by his mother~~L.P. NexPoint Real Estate Capital, ~~Xxx X. Xxxxxx~~LLC NexPoint Real Estate Opportunities, ~~which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).~~LLC

Appears in 1 contract

Samples: Underwriting Agreement (Jernigan Capital, Inc.)

Research Analyst Independence. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that ~~(a)~~ the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal ~~policies~~ policies, and ~~(b) the~~ that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the ~~Company, the value of the Common Stock~~ Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and ~~the Selling Stockholder hereby waive and release~~releases, to the fullest extent permitted by law, any claims that ~~they~~ the Company may have against the Underwriters with respect to any ~~discrepancy or~~ conflict of interest that may arise from the fact that the views expressed by ~~the Underwriters’~~ their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company ~~or the Selling Stockholder~~ by ~~any Underwriter’s~~ such Underwriters’ investment banking ~~division~~divisions. The Company ~~and the Selling Stockholder acknowledge~~ acknowledges that each of the Underwriters is a full service securities firm and as ~~such,~~ such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that ~~are~~ may be the subject of the transactions contemplated by this Agreement. ~~Please confirm that~~ If the foregoing ~~correctly sets forth~~ is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the ~~agreement between the Company, the Selling Stockholder and the several Underwriters~~space provided below. Very truly yours, ~~HEARTLAND EXPRESS~~ATP OIL & GAS CORPORATION By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: President Accepted: June 11, 2009 X.X. XXXXXX SECURITIES INC. ~~/s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President of Finance~~ For itself and ~~Chief Financial Officer SELLING STOCKHOLDER: 2009 Xxxxxx Heartland Trust UTA 7/15/2009 /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Trustee CONFIRMED as of the date first above mentioned,~~ on behalf of the ~~Representatives and the other~~ several Underwriters ~~named~~ listed in Schedule I 1 hereto. ~~XXXXXX, XXXXXXXX~~ By: /s/ Xxx Xxxxxxx-Xxxxx Authorized Signatory X. X. XXXXXX & COMPANY, INC. By: /s/ Xxxxxxxxx X. Xxxxxxx Authorized Signatory CANACCORD XXXXX INC. By: /s/ Xxxxxxxxx X. Xxxxxx Authorized Signatory FIG PARTNERS, LLC By: /s/ Xxxxxxxx Xxxxxxx Authorized Signatory GLOBAL HUNTER SECURITIES, LLC By: /s/ Xxxxxx X. Xxxxxxx, XX Authorized Signatory XXXXXX XXXX INCORPORATED By: /s/ ~~Xxxxx~~ Xxxx Xxxxxxx Authorized ~~Representative XXXXXXXX~~ Signatory NATIXIS BLEICHROEDER INC. By: /s/ Xxxxxxx Xxxxxx Authorized ~~Representative XXXXX FARGO SECURITIES~~Signatory XXXXXXXXX CAPITAL PARTNERS, ~~LLC~~ LLC. By: /s/ Xxxx Xxxxxxxxxxx Authorized Signatory SMH CAPITAL, INC. By: /s/ Xxxxx ~~Xxxxxx~~ X. Mockenhoupt Authorized ~~Representative Xxxxx Xxxxxx - Director BB&T CAPITAL MARKETS, a division of BB&T~~ Signatory XXXXXXXXXX SECURITIES, ~~LLC~~ INC. By: /s/ Xxxxxxxxxxx Xxxxxxx Authorized Signatory Schedule 1 Underwriter Number of Shares X.X. Xxxxxx Securities Inc. 5,468,748 SMH Capital, Inc. 557,813 X. ~~Xxxxx Authorized Representative Xxxxxxx~~ X. ~~Xxxxx Managing Director US 3297123v.16 Schedule I Name Number ofFirm Shares Xxxxxx, Xxxxxxxx~~ Xxxxxx & Company, ~~Incorporated 975,000 Xxxxxxxx~~ Inc. ~~975,000~~ 557,813 Xxxxxxxxx Capital Partners, LLC. 557,813 Canaccord Xxxxx ~~Fargo~~ Inc. 284,375 Global Hunter Securities, LLC ~~650,000 BB&T Capital Markets, a division of BB&T~~ 284,375 Natixis Bleichroeder Inc. 284,375 Xxxxxx Xxxx Incorporated 284,375 Xxxxxxxxxx Securities, LLC 650,000 Total: 3,250,000 Schedule II Free Writing Prospectuses The electronic roadshow available at xxx.xxxxxxxxxxx.xxx Pricing Information Number of Firm Shares: 3,250,000 Number of Additional Shares: 487,500 Public Offering Price: $23.75 per share of Common Stock Exhibit A [SEE FORM UNDER SEPARATE COVER] US 3304868v.9 Heartland Express, Inc. ~~Lock-Up Agreement XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXX INC. Xxxxx Fargo Securities~~284,375 FIG Partners, LLC ~~BB&T Capital Markets, a division~~ 185,938 Total 8,750,000 Annex A-1 [Form of ~~BB&T Securities, LLC As Representatives~~ Opinion of the Several Underwriters x/x Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: Heartland Express, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned, an officer and/or director of Heartland Express, Inc., a Nevada corporation (the “Company”), or one of its subsidiaries, understands that Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxx Inc., Xxxxx Fargo Securities, LLC and BB&T Capital Markets, a division of BB&T Securities, LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”), on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with the Company and the 2009 Xxxxxx Heartland Trust UTA 7/15/2009 (the “Selling Stockholder”), providing Counsel for a public offering (the “Public Offering”) of Shares (as defined in the Underwriting Agreement). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the final prospectus relating to the Public Offering (the “Lock-Up Period”), the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not offer, sell, contract to sell, pledge, lend, grant any option to purchase, make any short sale or otherwise dispose of any shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (collectively the “Undersigned's Shares”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to result in, or that reasonably could be expected to lead to, a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to or derives any significant part of its value from such Shares. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx, Xxxxxxxx & Company, Incorporated, the undersigned will not, during the Lock-Up Period, make any demand for, or exercise any right with respect to, the registration of the Undersigned’s Shares. Notwithstanding the foregoing, the undersigned may, during the Lock-Up Period, transfer the Undersigned’s Shares (i) as a bona fide gift or gifts or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, [or] (iii) to an entity in which more than fifty percent of the voting interests are owned by the undersigned or the undersigned’s family members (as defined in Section A.1(a)(5) of the General Instructions S-8 under the Securities Act of 1933, as amended (the “Securities Act”)), provided that the entity agrees to be bound in writing by the restrictions set forth herein, [or (iv) to a member of the undersigned’s immediate family, provided that the undersigned’s immediate family member agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value] 1; provided, however, that it shall be a condition of transfers pursuant to clauses (i), (ii) or (iii) above that such transfers are not required to be reported and are not voluntarily reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and no other public filing or report regarding such transfer shall be required or shall be voluntarily made during the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. As of the date hereof, the Undersigned’s Shares are not, and for the duration of this Lock-Up Agreement the Undersigned’s Shares will not be, pledged, hypothecated, or granted as collateral or security for any obligation. [In addition, notwithstanding the foregoing, during the Lock-Up Period, the undersigned may sell or otherwise dispose of the Undersigned’s Shares for the purpose of raising proceeds to cover or otherwise satisfying the reasonably estimated U.S. federal or state tax liability incurred by the undersigned as a result of the vesting, during the Lock-Up Period, of restricted shares of Common Stock outstanding on the date hereof pursuant to stock plans disclosed in the Time of Sale Information (as defined in the Underwriting Agreement), provided that each such transfer shall occur on or about the time of such vesting and shall be of an amount of the Undersigned’s Shares that raises gross proceeds that, as nearly as reasonably practicable, approximate such tax liability, and provided further that if the undersigned is required to make a filing under the Exchange Act reporting a reduction in beneficial ownership of the Undersigned’s Shares during the Lock-Up Period as a result of such sale or disposition, the undersigned shall include a statement in such report to the effect that the purpose of such sale or other disposition was to cover tax obligations of the undersigned in connection with the vesting of the undersigned’s restricted shares of Common Stock.]2 1NTD: Only include for Xxxxxxx X. Xxxxxx, who serves as trustee of several GRATs established by his mother, Xxx X. Xxxxxx, which hold Company common shares and make annuity payments in the form of Company common shares to her or to other trusts set up for her benefit, which would be covered by clause (ii).]

Appears in 1 contract

Samples: Atp Oil & Gas Corp

Common use of Research Analyst Independence Clause in Contracts