Bank of America
Corporation
Common Stock
($0.01 par value)
ATM EQUITY OFFERING
SM
SALES AGREEMENT
MERRILL LYNCH
& CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Banc of America
Securities LLC
c/o Merrill
Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant
Park
New York, New York 10036
Bank of America
Corporation, a Delaware corporation (the “ Company
”), proposes, subject to the terms and conditions stated
herein, to issue and sell from time to time to or through Merrill
Lynch, Pierce, Fenner & Smith Incorporated or Banc of America
Securities LLC, as sales agent and/or principal (each, an “
Agent ” and together, the “ Agents
”), up to 1,250,000,000 shares (the “ Shares
” ) of the Company’s common stock, $0.01 par
value (the “ Common Stock ”), on the terms set
forth in Section 2 of this ATM Equity Offering
SM Sales Agreement (the “ Agreement
”). The Company agrees that whenever it determines to sell
Shares directly to any Agent as principal, it will enter into a
separate agreement (each, a “ Terms Agreement ”)
in substantially the form of Annex I hereto, relating to such sale
in accordance with Section 2 of this Agreement.
Section 1.
Representations and Warranties of the Company . The Company
represents and warrants to each Agent that as of the date of this
Agreement, each Registration Statement Amendment Date (as defined
in Section 3 below), each Company Periodic Report Date (as
defined in Section 3 below), each Company Earning Report Date
(as defined in Section 3 below), each Request Date (as defined
in Section 3 below), each Applicable Time (as defined in
Section 1(a) below) and each Settlement Date (as defined in
Section 2 below):
(a) The
Company has prepared and filed with the Securities and Exchange
Commission (the “ Commission ”) a registration
statement on Form S-3 (File No. 333-158663), which contains a
base prospectus (the “ Basic Prospectus ”), to
be used in connection with the offer, sale and distribution of the
Company’s Common Stock (including the Shares) (collectively,
the “ Securities ”). Such registration
statement, as amended, including the financial statements, exhibits
and schedules thereto, including any required information deemed to
be a part thereof pursuant to Rule 430B under the Securities
Act of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the “ 1933 Act ”), and
the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (collectively, the “
1934 Act ”), at each time of effectiveness, is called
the “ Registration Statement .” The term “
Prospectus Supplement ” shall mean the final
prospectus supplement relating specifically to the Shares that is
first filed pursuant to Rule 424(b). The term “
Prospectus ” refers to the Basic Prospectus, as
amended and supplemented by the Prospectus Supplement. Any
reference herein to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus, as the
case may be, shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the 1933 Act; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or
15(d) of the 1934 Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement. Any “issuer free writing prospectus” as
defined in Rule 433 under the 1933 Act relating to the Shares
is hereinafter called an “ Issuer Free Writing
Prospectus ”). All references in this Agreement to the
Registration Statement, the Prospectus, the Prospectus
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Supplement or
any amendments or supplements to any of the foregoing shall include
any copy thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System
(“EDGAR”).
For the purposes
of this Agreement, the “ Applicable Time ”
means, with respect to any Shares, the time of sale of such Shares
pursuant to this Agreement. The Prospectus and the applicable
Issuer Free Writing Prospectus(es) issued at or prior to such
Applicable Time, taken together (collectively, and, with respect to
any Shares, together with the public offering price of such Shares,
the “ General Disclosure Package ”) as of each
Applicable Time and each Settlement Date, will not include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and each applicable Issuer Free Writing Prospectus will
not conflict with the information contained in the Registration
Statement, the Prospectus Supplement or the Prospectus and each
such Issuer Free Writing Prospectus, as supplemented by and taken
together with the General Disclosure Package as of such Applicable
Time, will not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(b) The
documents incorporated or deemed to be incorporated by reference in
the Registration Statement, the General Disclosure Package and the
Prospectus when they were filed with the Commission, complied in
all material respects with the requirements under the 1933 Act or
the 1934 Act, as applicable, and did not, when such incorporated
documents were so filed, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading;
provided , that the foregoing representations and warranties
shall not apply to conflicts arising from statements in or
omissions from any Issuer Free Writing Prospectus made in reliance
upon information furnished herein or in writing to the Company by
the Agents (the “Agent Information”) for use in such
Issuer Free Writing Prospectus; provided , further, that any
statement contained in any document incorporated by reference into
the Registration Statement, the General Disclosure Package or
Prospectus whether such incorporated documents are filed before or
after the date of such Registration Statement, the General
Disclosure Package or Prospectus (an “Incorporated
Document”) shall be deemed not to be contained in the
Registration Statement, the Disclosure Package or the Prospectus if
the statement has been modified or superseded by any statement in a
subsequently filed Incorporated Document or in the Registration
Statement, the General Disclosure Package or Prospectus or in any
amendment or supplement thereto. The Commission has not issued any
stop order suspending the effectiveness of the Registration
Statement or any order preventing or suspending the use of the
Prospectus, and the Company is without knowledge that any
proceedings have been instituted for either purpose.
(c) The
Company has not received any notice from the New York Stock
Exchange (“NYSE”), the London Stock Exchange
(“LSE”) or the Tokyo Stock Exchange (“TSE”)
regarding the delisting of its Common Stock.
(d) The
Shares have been duly and validly authorized and reserved for
issuance and sale pursuant to this Agreement, and, when issued and
delivered by the Company pursuant to this Agreement (giving effect
to any maximum gross proceeds limitation that is referenced in
Section 6(e) hereof) or any Terms Agreement against payment
therefor, the Shares will be duly and validly issued and fully paid
and non-assessable; the issuance of the Shares is not subject to
any preemptive or similar rights.
(e) The issue
and sale of the Shares and the compliance by the Company with all
of the provisions of this Agreement, and the consummation of the
transactions herein contemplated, and the performance of its
obligations hereunder, will not contravene any provision of
applicable law, the certificate of incorporation or bylaws of the
Company or articles of association or bylaws of Bank of America,
N.A. (the “Principal Subsidiary Bank”) or any agreement
or other instrument binding upon the Company or the Principal
Subsidiary Bank that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any subsidiary; and no consent, approval, authorization
or order of, or qualification with, any governmental or regulatory
body is required for the performance by the Company of its
obligations under this Agreement, except such as may be required by
the securities or Blue Sky laws of the various states or foreign
jurisdictions in connection with the offer and sale of the
Shares.
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(f) Neither
the Company nor any affiliate of the Company has taken, nor will
the Company or any affiliate take, directly or indirectly, any
action which is designed to or which has constituted or which would
be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the Shares.
(g) (A) At
the time of filing the Registration Statement, (B) at the time
of the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) under the 1933 Act (whether such
amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the 1934 Act or form
of prospectus), (C) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the 1933 Act) made any offer relating to the
Shares in reliance on the exemption of Rule 163 under the 1933
Act, and (D) as of the date of this Agreement (with such date being
used as the determination date for purposes of this clause (D)),
the Company was and is a “well known seasoned issuer”
as defined in Rule 405 under the 1933 Act. The Registration
Statement is an “automatic shelf registration
statement,” as defined in Rule 405 under the 1933 Act,
the Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) under the 1933 Act objecting to use
of the automatic shelf registration statement form and the Company
has not otherwise ceased to be eligible to use the automatic shelf
registration statement form.
(i) During
the term of this Agreement, the Company has not taken any action to
repurchase (directly or indirectly) any shares of its Common Stock
that would be prohibited by Regulation M promulgated under the
1934 Act.
(j) As of the
date hereof, when the Prospectus is first filed with the Commission
pursuant to Rule 424(b) under the 1933 Act, when any supplement or
amendment to the Prospectus is filed with the Commission, at each
Settlement Date (as hereinafter defined) and, with respect to the
Registration Statement in (A) and (B) below, as of the
Applicable Time, (A) the Registration Statement is effective,
the Registration Statement, as amended as of any such time, and the
Prospectus, as amended or supplemented as of any such time
complied, complies or will comply in all material respects with the
applicable provisions under the 1933 Act and the 1934 Act,
(B) the Registration Statement, as amended as of any such
time, did not, does not and will not contain any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein not misleading, and (C) the Prospectus, as amended or
supplemented as of any such time, did not, does not and will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided,
however , that the Company makes no representations or
warranties as to the Agent Information.
(k) If at any
time following issuance of an Issuer Free Writing Prospectus and
prior to the end of any period when the delivery of a prospectus is
required in connection with the offering or sale of Shares (whether
physically or through compliance with Rule 153 or 172, or in
lieu thereof, a notice referred to in Rule 173(a) under the 1933
Act), there occurred or occurs an event or development as a result
of which such Issuer Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration
Statement or the Prospectus, the Company has promptly notified or
will promptly notify the Agent and has promptly amended or
supplemented or will promptly amend or supplement, at its own
expense, such Issuer Free Writing Prospectus to eliminate or
correct such conflict. The foregoing two sentences do not apply to
statements in or omissions from an Issuer Free Writing Prospectus
based upon and in conformity with Agent Information.
(l) The
Company has not distributed and will not distribute, prior to the
date hereof, any offering material in connection with the offering
and sale of the Shares other than the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus reviewed and
consented to by the Agent.
Any certificate
signed by any officer or other authorized signatory of the Company
and delivered to the Agent or to counsel for the Agent shall be
deemed a representation and warranty by the Company to the Agent as
to the matters covered thereby.
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Section 2.
Sale and Delivery of Shares .
(a) Subject
to the terms and conditions set forth herein, the Company agrees to
issue and sell through the Agents acting as sales agents or
directly to such Agents acting as principal from time to time, and
each Agents agrees, severally and not jointly, to use its
commercially reasonable efforts to sell as sales agent for the
Company, the Shares. Sales of the Shares, if any, through the
Agents acting as sales agents or directly to such Agents acting as
principal, will be made (i) by privately negotiated transactions,
or (ii) by any other method permitted by law, deemed to be an
“at the market” offering as defined in Rule 415 of
the Securities Act.
(b) The
Shares are to be sold on a daily basis or otherwise as shall be
agreed to by the Company and the Agent through whom the sale of
Shares are to be effected on any trading day (other than a day on
which the NYSE is scheduled to close prior to its regular weekday
closing time, each, a “ Trading Day ”) that the
Company has satisfied its obligations under Section 6 of this
Agreement and that the Company has instructed such Agent to make
such sales. On any Trading Day, the Company shall sell Shares
through only one Agent, but in no event through both, and the
Company shall give at least one business day prior written notice
by telecopy or email to the Agents to notify any change of the
Agent through whom the sale of Shares will be effected. For the
avoidance of doubt, the foregoing limitation shall not apply to
sales solely to employees or security holders of the Company or its
subsidiaries, or to a trustee or other person acquiring such
securities for the accounts of such persons or, sales in which
either Merrill Lynch, Pierce, Fenner & Smith Incorporated or
Banc of America Securities LLC is acting for the Company in a
capacity other than as Agent under this Agreement. On any Trading
Day, the Company may instruct the Agent through whom the sale of
Shares are effected that day by telephone (confirmed promptly by
telecopy or email, which confirmation will be promptly acknowledged
by such Agent) as to the maximum number of Shares to be sold by
such Agent on such day (in any event not in excess of the number
available for issuance under the Prospectus and the currently
effective Registration Statement) and the minimum price per Share
at which such Shares may be sold. Subject to the terms and
conditions hereof, each Agent shall use its commercially reasonable
efforts to sell as sales agent all of the Shares so designated by
the Company. The Company and each Agent acknowledges and agrees
that (A) there can be no assurance that the Agent will be
successful in selling the Shares, (B) neither Agent will incur
liability or obligation to the Company or any other person or
entity if it does not sell Shares for any reason other than a
failure by such Agent to use its commercially reasonable efforts
consistent with its normal trading and sales practices and
applicable law and regulations to sell such Shares as required by
this Agreement, and (C) neither Agent shall be under an
obligation to purchase Shares on a principal basis except as
otherwise specifically agreed by such Agent and the Company
pursuant to a Terms Agreement. In the event of a conflict between
the terms of this Agreement and the terms of a Terms Agreement, the
terms of such Terms Agreement will control.
(c) Notwithstanding
the foregoing, the Company shall not authorize the issuance and
sale of, and neither Agent shall be obligated to use its
commercially reasonable efforts to sell, any Shares (i) at a
price lower than the minimum price therefor authorized from time to
time as notified to such Agent by the Authorized Representative (as
defined below), or (ii) in a number or with an aggregate gross
sales price in excess of the number or gross sales price, as the
case may be, of Shares authorized from time to time to be issued
and sold under this Agreement, in each case, by the Company’s
board of directors, or a duly authorized committee thereof, or in a
number in excess of the number of Shares approved for listing on
the NYSE or inconsistent with the instructions given to the Agents
by any Authorized Representative , and in each case notified to
such Agent in writing by the Authorized Representative. In
addition, the Company or any Agent may, upon notice to the other
party hereto by telephone (confirmed promptly by telecopy or email,
which confirmation will be promptly acknowledged), suspend the
offering of the Shares with respect to which such Agent is acting
as sales agent for any reason and at any time; provided ,
however , that such suspension or termination shall not
affect or impair the parties’ respective obligations with
respect to the Shares sold hereunder prior to the giving of such
notice. An “ Authorized Representative ” means
the individuals which are listed as authorized representatives of
the Company on Schedule 1 hereto, which may be amended by the
Company from time to time upon at least three Trading Days notice
to the Agents.
(d) The
gross sales price of any Shares sold pursuant to this Agreement by
the Agents acting as sales agent of the Company shall be the actual
execution price of the Shares sold by such Agent. The compensation
payable to such Agent for sales of Shares with respect to which the
Agent acts as sales agent shall be equal to 1.0% of the gross sales
price of the Shares sold pursuant to this Agreement. The Company
may sell Shares to either Agent as principal at a price agreed upon
at the relevant Applicable Time and pursuant to a separate Terms
Agreement. The remaining proceeds shall constitute the net proceeds
to the Company for such Shares (the “ Net Proceeds
”).
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(e) If
acting as sales agent hereunder, the applicable Agent shall provide
written confirmation to the Company following the close of trading
on the NYSE each day in which Shares are sold under this Agreement
setting forth the number of Shares sold on such day, the aggregate
gross sales proceeds of the Shares, the aggregate Net Proceeds to
the Company and the aggregate compensation payable by the Company
to such Agent with respect to such sales.
(f) Under
no circumstances shall the aggregate gross sales price or number,
as the case may be, of Shares sold pursuant to this Agreement and
any Terms Agreement exceed the aggregate gross sales price or
number, as the case may be, of Shares of Common Stock (i) set
forth in the preamble paragraph of this Agreement,
(ii) available for issuance under the Prospectus and the then
currently effective Registration Statement or (iii) authorized
from time to time to be issued and sold under this Agreement or any
Terms Agreement by the Company’s board of directors, or a
duly authorized committee thereof or approved for listing on the
NYSE or inconsistent with the instructions given to the Agents by
any Authorized Representative, and in each case referred to in this
clause (iii), and notified to the Agents in writing. In addition,
under no circumstances shall any Shares with respect to which the
Agents act as sales agent be sold at a price lower than the minimum
price therefor authorized from time to time by the Company’s
board of directors, or a duly authorized committee thereof, and
notified to the Agents in writing.
(g) Settlement
for sales of Shares pursuant to this Section 2 will occur on
the third business day that is also a Trading Day following the
trade date on which such sales are made, unless another date shall
be agreed to by the Company and the Agent (each such day, a “
Settlement Date ”). On each Settlement Date, the
Shares sold through the Agent through whom the sale of Shares are
effected that day for settlement on such date shall be delivered by
the Company to such Agent against payment of the Net Proceeds from
the sale of such Shares. Settlement for all Shares shall be
effected by book-entry delivery of Shares to such Agent’s
account at The Depository Trust Company against payment by such
Agent of the Net Proceeds from the sale of such Shares in same day
funds delivered to an account designated by the Company. If the
Company shall default on its obligation to deliver Shares on any
Settlement Date, the Company shall (i) indemnify and hold such
Agent harmless against any loss, claim or damage arising from or as
a result of such default by the Company and (ii) pay such
Agent any commission to which it would otherwise be entitled absent
such default. If the Agent through whom the sale of Shares are
effected that day breaches this Agreement by failing to deliver the
applicable Net Proceeds on any Settlement Date for Shares delivered
by the Company, such Agent will pay the Company interest based on
the effective overnight federal funds rate until such proceeds,
together with such interest, have been fully paid.
Section 3.
Covenants. The Company agrees with each Agent:
(a) During
any period when the delivery of a prospectus is required in
connection with the offering or sale of Shares (whether physically
or through compliance with Rule 153 or 172, or in lieu
thereof, a notice referred to in Rule 173(a) under the 1933 Act),
(i) to make no further amendment or any supplement to the
Registration Statement or the Prospectus (except with respect to a
filing required under the 1934 Act or a prospectus supplement
relating to the sale of securities) prior to any Settlement Date
without the approval of the Agents, which approval shall not be
unreasonably withheld and to advise the Agents, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
amendment or supplement to the Prospectus has been filed and to
furnish the Agents with copies thereof, (ii) to file promptly
all other material required to be filed by the Company with the
Commission pursuant to Rule 433(d) under the 1933 Act,
(iii) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the 1934 Act, (iv) to advise the Agents, promptly after it
receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of the
Prospectus, of any notice of objection of the Commission to the use
of the form of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the 1933
Act, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
form of the Registration Statement or the Prospectus, and
(v) in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of the Prospectus
in respect of the Shares or suspending any such qualification, to
promptly use its commercially reasonable efforts to obtain the
withdrawal
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of such order;
and in the event of any such issuance of a notice of objection,
promptly to take such reasonable steps as may be necessary to
permit offers and sales of the Shares by the Agents, which may
include, without limitation, amending the Registration Statement or
filing a new registration statement, at the Company’s expense
(references herein to the Registration Statement shall include any
such amendment or new registration statement).
(b) Promptly
from time to time to take such action as the Agents may reasonably
request to qualify the Shares for offering and sale under the state
blue sky securities laws of such jurisdictions as the Agents may
request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the sale of the Shares,
provided that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction; and to
promptly advise the Agents of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Shares for offer or sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose.
(c) During
any period when the delivery of a prospectus is required (whether
physically or through compliance with Rules 153 or 172, or in
lieu thereof, a notice referred to in Rule 173(a) under the 1933
Act) in connection with the offering or sale of Shares, the Company
will make available to the Agents, as soon as practicable after the
execution of this Agreement, and thereafter from time to time
furnish to the Agents, copies of the most recent Prospectus in such
quantities and at such locations as the Agents may reasonably
request for the purposes contemplated by the 1933 Act. During any
period when the delivery of a prospectus is required (whether
physically or through compliance with Rules 153 or 172, or in
lieu thereof, a notice referred to in Rule 173(a) under the 1933
Act) in connection with the offering or sale of Shares, and if at
such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall
be necessary during such same period to amend or supplement the
Prospectus or to file under the 1934 Act any document incorporated
by reference in the Prospectus in order to comply with the 1933 Act
or the 1934 Act, to notify the Agents and to file such document and
to prepare and furnish without charge to the Agents as many written
and electronic copies as the Agents may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect
such compliance.
(d) To make
generally available to its securityholders as soon as practicable,
but in any event not later than sixteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under
the 1933 Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section
11(a) of the 1933 Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company,
Rule 158).
(e) To pay
the required Commission filing fees relating to the Shares within
the time required by Rule 456(b)(1) under the 1933 Act without
regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r) under the 1933 Act.
(f) If on any
day the Company engages in any repurchases of any shares of its
Common Stock, it will suspend activities under the program for such
day so that such repurchases are not made during any
“restricted period” (as defined in Regulation M
promulgated under the 1933 Act) applicable to any offering under
the program.
(g) To not
take, directly or indirectly, any action designed to cause or
result in, or that has constituted or might reasonably be expected
to constitute, under the 1934 Act or otherwise, the stabilization
or manipulation of the price of any securities of the Company to
facilitate the sale or resale of the Shares.
(h) At each
Applicable Time, each Settlement Date, each Registration Statement
Amendment Date (as defined below), each Company Earnings Report
Date (as defined below), each Request Date and each Company
Periodic Report Date (as defined below) and each date on which
Shares are delivered to an Agent pursuant to a Terms Agreement, the
Company shall be deemed to have affirmed each representation,
warranty, covenant and other agreement contained in this Agreement
or any Terms Agreement. A “ Company Earnings Report
Date ” is a date on which a Current Report on Form 8-K
which shall include substantially the same financial and
related
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information as
was set forth in the relevant earnings announcement (other than any
earnings projections, similar forward-looking data and
officers’ quotations) shall be filed with the Commission. In
each Annual Report on Form 10-K or Quarterly Report on Form 10-Q
filed by the Company in respect of any quarter in which sales of
Shares were made by or through the Agents under this Agreement or
any Terms Agreement (each date on which any such document is filed,
and any date on which an amendment to any such document is filed, a
“ Company Periodic Report Date ”), the Company
shall set forth with regard to such quarter the number of Shares
sold through the Agents under this Agreement or any Terms
Agreement, the Net Proceeds received by the Company and the
compensation paid by the Company to the Agents with respect to
sales of Shares pursuant to this Agreement or any Terms
Agreement.
(i) Upon
commencement of the offering of Shares under this Agreement and
each time Shares are delivered to an Agent as principal on a
Settlement Date and promptly after each (i) date the
Registration Statement or the Prospectus shall be amended or
supplemented (other than (1) by an amendment or supplement
providing solely for the determination of the terms of the Shares,
(2) in connection with the filing of any Current Report on
Form 8-K or (3) by a prospectus supplement relating to the
offering of other securities (including, without limitation, other
shares of Common Stock)) (each such date, a “ Registration
Statement Amendment Date ,” (ii) Company Periodic
Report Date, and (iii) promptly after each reasonable request
by the Agents (each date of any such request by the Agents, a
“ Request Date ”) (each of the date of the
commencement of the offering of Shares under this Agreement, each
such Settlement Date where an Agent is acting as principal and each
Registration Statement Amendment Date, Company Periodic Report Date
and Request Date is hereinafter called a “ Delivery
Date ”), the Company will furnish or cause to be
furnished to the Agents (with a copy to counsel to the Agents) a
certificate dated as of the date of delivery thereof to the Agents
(or, in the case of an amendment or supplement to the Registration
Statement or the Prospectus (including, without limitation, by the
filing of any document under the 1934 Act that is incorporated by
reference therein, except in connection with the filing of any
Current Report on Form 8-K), the date of the effectiveness of such
amendment to the Registration Statement or the date of filing with
the Commission of such supplement or incorporated document, as the
case may be), in form and substance reasonably satisfactory to the
Agents and their counsel, certifying that the statements contained
in the certificate referred to in Section 6(e) of this Agreement
which was last furnished to the Agents are true and correct as of
the date of such certificate as though made at and as of the date
of such certificate (except that such statements shall be deemed to
relate to the Registration Statement, the Prospectus and the
General Disclosure Package as amended and supplemented to the date
of such certificate) or, in lieu of such certificate, a certificate
of the same tenor as the certificate referred to in Section 6(e),
but modified as necessary to relate to the Registration Statement,
the Prospectus and the General Disclosure Package as amended and
supplemented to the date of such certificate. As used in this
paragraph, to the extent there shall be an Applicable Time on or
following the applicable Delivery Date, “promptly”
shall be deemed to be on or prior to the next succeeding Applicable
Time.
(j) Upon
commencement of the offering of Shares under this Agreement and
each time the Shares are delivered to an Agent as principal on a
Settlement Date, and promptly after each other Delivery Date, the
Company will furnish or cause to be furnished to the Agents (with a
copy to counsel to the Agents) the written opinion and letter of
each counsel to the Company (who shall be reasonably acceptable to
the Agents), dated the date of delivery thereof to the Agents (or,
in the case of an amendment or supplement to the Registration
Statement or the Prospectus (including, without limitation, by the
filing of any document under the 1934 Act that is incorporated by
reference therein, except in connection with the filing of any
Current Report on Form 8-K), the date of the effectiveness of such
amendment to the Registration Statement or the date of filing with
the Commission of such supplement or incorporated document, as the
case may be), in form and substance reasonably satisfactory to the
Agents and their counsel, of the same tenor as the opinions and
letters referred to in Section 6(c) of this Agreement, but modified
as necessary to relate to the Registration Statement, the
Prospectus and the General Disclosure Package as amended and
supplemented to the date of such opinion and letter or, in lieu of
any such opinion and letter, counsel last furnishing such opinion
and letter to the Agents shall furnish the Agents (with a copy to
their counsel) with a letter substantially to the effect that the
Agents may rely on such counsel’s last opinion and letter to
the
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