Common use of Alternative Arrangements Clause in Contracts

Alternative Arrangements. (i) If the Company wishes to issue and sell the Stock other than as set forth in Sections 2(a) and (b) of this Agreement or to the Alternative Agent other than as set forth in Sections 2(a) and (b) of the Alternative Distribution Agreement, as the case may be (each a “Placement”), it will notify the Agent or the Alternative Agent, as the case may be, of the proposed terms of such Placement. If the Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company and, if applicable, the Alternative Agent, wishes to accept amended terms, the Agent, the Company and the Alternative Agent will enter into a Terms Agreement, setting forth the terms of such Placement. (ii) In the event that the Company intends to issue any shares of Common Stock or any other securities that are convertible into or substantially similar to the Common Stock in an underwritten public offering prior to the time that the aggregate offering price of Stock sold pursuant to the Distribution Agreements or any Terms Agreement reaches $50,000,000, other than in accordance with Section 2(c)(i) of this Agreement or Section 2(c)(i) of the Alternative Distribution Agreement, the Company will promptly provide a written notice informing the Agent and the Alternative Agent of the proposed terms of such offering. If the Agent, acting as principal, wishes to purchase such shares as principal and make a public offering of such Common Stock or other securities on such proposed terms (which it may decline to do for any reason in its sole discretion), the Company will enter into good-faith negotiations of a Terms Agreement with the Agent and the Alternative Agent, if applicable, setting forth the terms of such an offering in an amount up to (i) $50,000,000 less (ii) the face amount of Stock sold under this Agreement and the Alternative Distribution Agreement. For the avoidance of doubt, the Agent will not be committed or otherwise obligated to act as an underwriter, agent or dealer in connection with any such proposed offering unless and until a final written Terms Agreement setting forth the terms of such offering is executed by the parties.

Alternative Arrangements. (ia) If the Company wishes to issue and sell the Stock Shares through any Agent of the Company’s choice other than as set forth in Sections 2(a) and (b) Section 3 of this Agreement or to the (an “Alternative Agent other than as set forth in Sections 2(a) and (b) of the Alternative Distribution Agreement, as the case may be (each a “Placement”), it will notify the applicable Agent or the Alternative Agent, as the case may be, of the proposed terms of such Alternative Placement. If the such Agent, acting as principalprincipal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company and, if applicable, the Alternative Agent, wishes to accept amended terms, the Agent, such Agent and the Company and the Alternative Agent will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (iib) The terms set forth in a Terms Agreement will not be binding on the Company or any Agent unless and until the Company and such Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, (i) the Company shall not offer or sell, or instruct the Agents to offer or sell, any Shares, (ii) the Company, by notice to the Agents given by telephone (confirmed promptly by e-mail), shall cancel any instructions for such offer or sale of Shares, and (iii) the Agents shall not be obligated to offer or sell any Shares, (x) at any time or during any period that the Company intends is or could be deemed to be, or the Agents reasonably believe that the Company is, in possession of material non-public information or (y) except as provided in Section 5(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue any shares a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of Common Stock or any other securities operations (each, an “Earnings Announcement”) through and including the time that are convertible into or substantially similar to the Common Stock in an underwritten public offering prior to is twenty-four (24) hours after the time that the aggregate offering price Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of Stock sold pursuant and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 5(a) and Section 5(b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes to offer or sell Shares on any date during the period from and including an Announcement Date through and including the time that is twenty-four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Distribution Agreements or any Terms Agreement reaches $50,000,000, Agents (with a copy to counsel to the Agents) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in accordance form and substance reasonably satisfactory to the Agents, and obtain the consent of the Agents to the filing thereof (such consent not to be unreasonably withheld, conditioned or delayed), (ii) provide the Agents with Section 2(c)(ithe officers’ certificate and accountants’ letter called for by Sections 6(n) and (p), respectively, and (iii) file (and not furnish) such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Agreement or Section 2(c)(i5(b), then the provisions of Section 5(a), except as otherwise provided herein, shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is twenty-four (24) hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is twenty-four (24) hours after the Filing Time of the Alternative Distribution Agreementrelevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the Company will promptly provide a written notice informing parties hereto agree that (A) the Agent and the Alternative Agent delivery of the proposed terms of such offering. If the Agent, acting as principal, wishes any officers’ certificate or accountants’ letter pursuant to purchase such shares as principal and make a public offering of such Common Stock or other securities on such proposed terms (which it may decline to do for any reason in its sole discretion), this Section 5(b) shall not relieve the Company will enter into good-faith negotiations from any of a Terms Agreement with the Agent and the Alternative Agent, if applicable, setting forth the terms of such an offering in an amount up to (i) $50,000,000 less (ii) the face amount of Stock sold its obligations under this Agreement and with respect to any such Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the Alternative Distribution Agreement. For the avoidance of doubtcase may be, including, without limitation, the Agent will not be committed obligation to deliver officers’ certificates, accountants’ letters and legal opinions and related letters as provided in Section 8 hereof, (B) this Section 5(b) shall in no way affect the provisions of clause (x) of Section 5(a), which shall have independent application and (C) the provisions of this Section 5(b) shall in no way affect the Company’s ability to file, subject to compliance with other applicable provisions of this Agreement, Current Reports on Form 8-K relating to earnings or otherwise obligated to act as an underwriter, agent or dealer in connection with any such proposed offering unless and until a final written Terms Agreement setting forth the terms of such offering is executed by the partiesother matters.

Alternative Arrangements. (ia) If the Company wishes to issue and sell the Stock Shares other than as set forth in Sections 2(a) and (b) Section 2 of this Agreement or to the (an “Alternative Agent other than as set forth in Sections 2(a) and (b) of the Alternative Distribution Agreement, as the case may be (each a “Placement”), it will notify the Agent or the Alternative Agent, as the case may be, of the proposed terms of such Alternative Placement. If the Agent, acting as principalprincipal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company and, if applicable, the Alternative Agent, wishes to accept amended terms, the Agent, Agent and the Company and the Alternative Agent will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (iib) The terms set forth in a Terms Agreement will not be binding on the Company or the Agent unless and until the Company and the Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, (i) the Company shall not offer or sell, or request the offer or sale of, any Shares, (ii) the Company, by notice to the Agent given by telephone (confirmed promptly by e‑mail), shall cancel any instructions for the offer or sale of Shares, and (iii) the Agent shall not be obligated to offer or sell any Shares, (x) unless otherwise agreed to in writing by the parties hereto (which agreement may be contained in a Placement Notice or in such other instructions provided by the Company to the Agent pursuant to Section 2(b)), during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, (y) at any time or during any period that the Company intends to is in possession of material non-public information or (z) except as provided in Section 4(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue any shares a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of Common Stock or any other securities operations (each, an “Earnings Announcement”) through and including the time that are convertible into or substantially similar to the Common Stock in an underwritten public offering prior to is twenty-four (24) hours after the time that the aggregate offering price Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of Stock sold pursuant and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 4(a) and Section 4(b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes to offer or sell Shares on any date during the period from and including an Announcement Date through and including the time that is twenty‑four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Distribution Agreements or any Terms Agreement reaches $50,000,000, Agent (with a copy to counsel to the Agent) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in accordance form and substance reasonably satisfactory to the Agent, and obtain the consent of the Agent to the filing thereof (such consent not to be unreasonably withheld or delayed), (ii) provide the Agent with Section 2(c)(ithe officers’ certificate and accountants’ letter called for by Sections 5(n) and (p), respectively, and (iii) file such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Agreement or Section 2(c)(i) of the Alternative Distribution Agreement, the Company will promptly provide a written notice informing the Agent and the Alternative Agent of the proposed terms of such offering. If the Agent, acting as principal, wishes to purchase such shares as principal and make a public offering of such Common Stock or other securities on such proposed terms (which it may decline to do for any reason in its sole discretion4(b), then the Company will enter into good-faith negotiations provisions of a Terms Agreement with the Agent and the Alternative Agent, if applicable, setting forth the terms of such an offering in an amount up to (i) $50,000,000 less clause (ii) of Section 4(a) shall not be applicable for the face amount period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is twenty-four (24) hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is twenty-four (24) hours after the Filing Time of Stock sold the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate or accountants’ letter pursuant to this Section 4(b) shall not relieve the Company from any of its obligations under this Agreement and with respect to any such Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the Alternative Distribution Agreement. For the avoidance of doubtcase may be, including, without limitation, the Agent will not be committed obligation to deliver officers’ certificates, accountants’ letters and legal opinions and related letters as provided in Section 7 hereof, (B) this Section 4(b) shall in no way affect the provisions of clause (x) of Section 4(a), which shall have independent application and (C) the provisions of this Section 4(b) shall in no way affect the Company’s ability to file, subject to compliance with other applicable provisions of this Agreement, Current Reports on Form 8-K relating to earnings or otherwise obligated to act as an underwriter, agent or dealer in connection with any such proposed offering unless and until a final written Terms Agreement setting forth the terms of such offering is executed by the partiesother matters.

Alternative Arrangements. (ia) If the Company wishes to issue and sell the Stock Shares other than as set forth in Sections 2(a) and (b) Section 3 of this Agreement or to the (an “Alternative Agent other than as set forth in Sections 2(a) and (b) of the Alternative Distribution Agreement, as the case may be (each a “Placement”), it will notify the Agent or the Alternative Agent, as the case may be, of the proposed terms of such Alternative Placement. If the Agent, acting as principalprincipal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company and, if applicable, the Alternative Agent, wishes to accept amended terms, the Agent, Agent and the Company and the Alternative Agent will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (iib) The terms set forth in a Terms Agreement will not be binding on the Company or the Agent unless and until the Company and the Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, (i) the Company shall not offer or sell, or instruct the Agent to offer or sell, any Shares, (ii) the Company, by notice to the Agent given by telephone (confirmed promptly by e-mail), shall cancel any instructions for the offer or sale of Shares, and (iii) the Agent shall not be obligated to offer or sell any Shares, (x) unless otherwise agreed to in writing by the parties hereto (which agreement may be contained in a Placement Notice or in such other instructions provided by the Company to the Agent pursuant to Section 3(b)) during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, (y) at any time or during any period that the Company intends to is in possession of material non-public information or (z) except as provided in Section 5(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue any shares a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of Common Stock or any other securities operations (each, an “Earnings Announcement”) through and including the time that are convertible into or substantially similar to the Common Stock in an underwritten public offering prior to is twenty-four (24) hours after the time that the aggregate offering price Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of Stock sold pursuant and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 5(a) and Section 5(b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes to offer or sell Shares on any date during the period from and including an Announcement Date through and including the time that is twenty-four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Distribution Agreements or any Terms Agreement reaches $50,000,000, Agent (with a copy to counsel to the Agent) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in accordance form and substance reasonably satisfactory to the Agent, and obtain the consent of the Agent to the filing thereof (such consent not to be unreasonably withheld or delayed), (ii) provide the Agent with Section 2(c)(ithe officers’ certificate and accountants’ letter called for by Sections 6(n) and (p), respectively, and (iii) file (and not furnish) such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Agreement or Section 2(c)(i5(b), then the provisions of Section 5(a), except as otherwise provided herein, shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is twenty-four (24) hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is twenty-four (24) hours after the Filing Time of the Alternative Distribution Agreementrelevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the Company will promptly provide a written notice informing parties hereto agree that (A) the Agent and the Alternative Agent delivery of the proposed terms of such offering. If the Agent, acting as principal, wishes any officers’ certificate or accountants’ letter pursuant to purchase such shares as principal and make a public offering of such Common Stock or other securities on such proposed terms (which it may decline to do for any reason in its sole discretion), this Section 5(b) shall not relieve the Company will enter into good-faith negotiations from any of a Terms Agreement with the Agent and the Alternative Agent, if applicable, setting forth the terms of such an offering in an amount up to (i) $50,000,000 less (ii) the face amount of Stock sold its obligations under this Agreement and with respect to any such Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the Alternative Distribution Agreement. For the avoidance of doubtcase may be, including, without limitation, the Agent will not be committed obligation to deliver officers’ certificates, accountants’ letters and legal opinions and related letters as provided in Section 8 hereof, (B) this Section 5(b) shall in no way affect the provisions of clause (x) of Section 5(a), which shall have independent application and (C) the provisions of this Section 5(b) shall in no way affect the Company’s ability to file, subject to compliance with other applicable provisions of this Agreement, Current Reports on Form 8-K relating to earnings or otherwise obligated to act as an underwriter, agent or dealer in connection with any such proposed offering unless and until a final written Terms Agreement setting forth the terms of such offering is executed by the partiesother matters.

Alternative Arrangements. (ia) If the Company wishes to issue and sell the Stock Shares other than as set forth in Sections 2(a) and (b) Section 2 of this Agreement or to the (an “Alternative Agent other than as set forth in Sections 2(a) and (b) of the Alternative Distribution Agreement, as the case may be (each a “Placement”), it will notify the Agent or the Alternative Agent, as the case may be, of the proposed terms of such Alternative Placement. If the Agent, acting as principalprincipal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company and, if applicable, the Alternative Agent, wishes to accept amended terms, the Agent, Agent and the Company and the Alternative Agent will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (iib) The terms set forth in a Terms Agreement will not be binding on the Company or the Agent unless and until the Company and the Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, (i) the Company shall not offer or sell, or request the offer or sale of, any Shares, (ii) the Company, by notice to the Agent given by telephone (confirmed promptly by e‑mail), shall cancel any instructions for the offer or sale of Shares, and (iii) the Agent shall not be obligated to offer or sell any Shares, (x) unless otherwise agreed to in writing by the parties hereto (which agreement may be contained in a Placement Notice or in such other instructions provided by the Company to the Agent pursuant to Section 2(b)), during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, (y) at any time or during any period that the Company intends to is in possession of material non-public information or (z) except as provided in Section 4(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue any shares a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of Common Stock or any other securities operations (each, an “Earnings Announcement”) through and including the time that are convertible into or substantially similar to the Common Stock in an underwritten public offering prior to is twenty-four (24) hours after the time that the aggregate offering price Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of Stock sold pursuant and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 4(a) and Section 4 (b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes to offer or sell Shares on any date during the period from and including an Announcement Date through and including the time that is twenty‑four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Distribution Agreements or any Terms Agreement reaches $50,000,000, Agent (with a copy to counsel to the Agent) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in accordance form and substance reasonably satisfactory to the Agent, and obtain the consent of the Agent to the filing thereof (such consent not to be unreasonably withheld or delayed), (ii) provide the Agent with Section 2(c)(ithe officers’ certificate and accountants’ letter called for by Sections 5(n) and (p), respectively, and (iii) file such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Agreement or Section 2(c)(i) of the Alternative Distribution Agreement, the Company will promptly provide a written notice informing the Agent and the Alternative Agent of the proposed terms of such offering. If the Agent, acting as principal, wishes to purchase such shares as principal and make a public offering of such Common Stock or other securities on such proposed terms (which it may decline to do for any reason in its sole discretion4(b), then the Company will enter into good-faith negotiations provisions of a Terms Agreement with the Agent and the Alternative Agent, if applicable, setting forth the terms of such an offering in an amount up to (i) $50,000,000 less clause (ii) of Section 4(a) shall not be applicable for the face amount period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is twenty-four (24) hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is twenty-four (24) hours after the Filing Time of Stock sold the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate or accountants’ letter pursuant to this Section 4(b) shall not relieve the Company from any of its obligations under this Agreement and with respect to any such Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the Alternative Distribution Agreement. For the avoidance of doubtcase may be, including, without limitation, the Agent will not be committed obligation to deliver officers’ certificates, accountants’ letters and legal opinions and related letters as provided in Section 7 hereof, (B) this Section 4(b) shall in no way affect the provisions of clause (x) of Section 4(a), which shall have independent application and (C) the provisions of this Section 4(b) shall in no way affect the Company’s ability to file, subject to compliance with other applicable provisions of this Agreement, Current Reports on Form 8-K relating to earnings or otherwise obligated to act as an underwriter, agent or dealer in connection with any such proposed offering unless and until a final written Terms Agreement setting forth the terms of such offering is executed by the partiesother matters.

Alternative Arrangements. (ia) If the Company wishes to issue and sell the Stock Shares other than as set forth in Sections 2(a) and (b) Section 2 of this Agreement or to the (an “Alternative Agent other than as set forth in Sections 2(a) and (b) of the Alternative Distribution Agreement, as the case may be (each a “Placement”), it will notify the Agent or the Alternative Agent, as the case may be, of the proposed terms of such Alternative Placement. If the Agent, acting as principalprincipal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company and, if applicable, the Alternative Agent, wishes to accept amended terms, the Agent, Agent and the Company and the Alternative Agent will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (iib) The terms set forth in a Terms Agreement will not be binding on the Company or the Agent unless and until the Company and the Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, the Company shall not offer or sell, or request the offer or sale of, any Shares and, by notice to the Agent given by telephone (confirmed promptly by e-mail), shall cancel any instructions for the offer or sale of Shares, and the Agent shall not be obligated to offer or sell any Shares, (i) unless otherwise agreed to in writing by the parties hereto (which agreement may be contained in a Placement Notice) during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, (ii) at any time or during any period that the Company intends to is in possession of material non-public information or (iii) except as provided in Section 4(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue any shares a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of Common Stock or any other securities operations (each, an “Earnings Announcement”) through and including the time that are convertible into or substantially similar to the Common Stock in an underwritten public offering prior to is twenty-four (24) hours after the time that the aggregate offering price Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of Stock sold pursuant and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 4(a) and Section 4(b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes to offer or sell Shares on any date during the period from and including an Announcement Date through and including the time that is twenty-four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Distribution Agreements or any Terms Agreement reaches $50,000,000, Agent (with a copy to counsel to the Agent) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in accordance form and substance reasonably satisfactory to the Agent, and obtain the consent of the Agent to the filing thereof (such consent not to be unreasonably withheld or delayed), (ii) provide the Agent with Section 2(c)(ithe officers’ certificate and accountants’ letter called for by Sections (5)(q) and (s), respectively, and (iii) file such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Agreement or Section 2(c)(i4(b), then the provisions of clause (ii) of Section 4(a) shall not be applicable for the Alternative Distribution Agreementperiod from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the Company will promptly provide a written notice informing time that is twenty-four (24) hours after the Agent time that the relevant Earnings Announcement was first publicly released) through and including the Alternative Agent time that is twenty-four (24) hours after the Filing Time of the proposed terms relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of such offering. If the Agent, acting as principal, wishes to purchase such shares as principal and make a public offering of such Common Stock or other securities on such proposed terms (which it may decline to do for any reason in its sole discretion)clarity, the parties hereto agree that (A) the delivery of any officers’ certificate or accountants’ letter pursuant to this Section 4(b) shall not relieve the Company will enter into good-faith negotiations from any of a Terms its obligations under this Agreement with respect to any such Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the Agent case may be, including, without limitation, the obligation to deliver officers’ certificates, accountants’ letters and legal opinions and related letters as provided in Section 7 hereof, (B) this Section 4(b) shall in no way affect the Alternative Agent, if applicable, setting forth the terms provisions of such an offering in an amount up to clause (i) $50,000,000 less of Section 4(a), which shall have independent application and (iiC) the face amount provisions of Stock sold under this Agreement and Section 4(b) shall in no way affect the Alternative Distribution Company’s ability to file, subject to compliance with other applicable provisions of this Agreement. For the avoidance of doubt, the Agent will not be committed Current Reports on Form 8-K relating to earnings or otherwise obligated to act as an underwriter, agent or dealer in connection with any such proposed offering unless and until a final written Terms Agreement setting forth the terms of such offering is executed by the partiesother matters.

Alternative Arrangements. (ia) If the Company wishes to issue and sell the Stock Shares other than as set forth in Sections 2(a) and (b) Section 2 of this Agreement or to the (an “Alternative Agent other than as set forth in Sections 2(a) and (b) of the Alternative Distribution Agreement, as the case may be (each a “Placement”), it will notify the Agent or the Alternative Agent, as the case may be, of the proposed terms of such Alternative Placement. If the Agent, acting as principalprincipal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company and, if applicable, the Alternative Agent, wishes to accept amended terms, the Agent, Agent and the Company and the Alternative Agent will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (iib) The terms set forth in a Terms Agreement will not be binding on the Company or the Agent unless and until the Company and the Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, the Company shall not offer or sell, or request the offer or sale of, any Shares and, by notice to the Agent given by telephone (confirmed promptly by electronic mail), shall cancel any instructions for the offer or sale of Shares, and the Agent shall not be obligated to offer or sell any Shares, (i) unless otherwise agreed to in writing by the parties hereto (which agreement may be contained in a Placement Notice) during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, (ii) at any time or during any period that the Company intends to is in possession of material non-public information or (iii) except as provided in Section 4(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue any shares a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of Common Stock or any other securities operations (each, an “Earnings Announcement”) through and including the time that are convertible into or substantially similar to the Common Stock in an underwritten public offering prior to is twenty-four (24) hours after the time that the aggregate offering price Company files (a “Filing Time”) a Quarterly Report on Form 10 Q or an Annual Report on Form 10 K that includes consolidated financial statements as of Stock sold pursuant and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 4(a) and Section 4(b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes to offer or sell Shares on any date during the period from and including an Announcement Date through and including the time that is twenty-four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Distribution Agreements or any Terms Agreement reaches $50,000,000, Agent (with a copy to counsel to the Agent) a Current Report on Form 8 K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in accordance form and substance reasonably satisfactory to the Agent, and obtain the consent of the Agent to the filing thereof (such consent not to be unreasonably withheld or delayed), (ii) provide the Agent with Section 2(c)(ithe officers’ certificate and accountants’ letter called for by Sections (5)(q) and (s), respectively, and (iii) file such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Agreement or Section 2(c)(i4(b), then the provisions of clause (ii) of Section 4(a) shall not be applicable for the Alternative Distribution Agreementperiod from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the Company will promptly provide a written notice informing time that is twenty-four (24) hours after the Agent time that the relevant Earnings Announcement was first publicly released) through and including the Alternative Agent time that is twenty-four (24) hours after the Filing Time of the proposed terms relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of such offering. If the Agent, acting as principal, wishes to purchase such shares as principal and make a public offering of such Common Stock or other securities on such proposed terms (which it may decline to do for any reason in its sole discretion)clarity, the parties hereto agree that (A) the delivery of any officers’ certificate or accountants’ letter pursuant to this Section 4(b) shall not relieve the Company will enter into good-faith negotiations from any of a Terms its obligations under this Agreement with respect to any such Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the Agent case may be, including, without limitation, the obligation to deliver officers’ certificates, accountants’ letters and legal opinions and related letters as provided in Section 7 hereof, (B) this Section 4(b) shall in no way affect the Alternative Agent, if applicable, setting forth the terms provisions of such an offering in an amount up to clause (i) $50,000,000 less of Section 4(a), which shall have independent application and (iiC) the face amount provisions of Stock sold under this Agreement and Section 4(b) shall in no way affect the Alternative Distribution Company’s ability to file, subject to compliance with other applicable provisions of this Agreement. For the avoidance of doubt, the Agent will not be committed Current Reports on Form 8-K relating to earnings or otherwise obligated to act as an underwriter, agent or dealer in connection with any such proposed offering unless and until a final written Terms Agreement setting forth the terms of such offering is executed by the partiesother matters.

Alternative Arrangements. (ia) If the Company wishes to issue and sell the Stock Shares other than as set forth in Sections 2(a) and (b) Section 2 of this Agreement or to the (an “Alternative Agent other than as set forth in Sections 2(a) and (b) of the Alternative Distribution Agreement, as the case may be (each a “Placement”), it will notify the Agent or the Alternative Agent, as the case may be, of the proposed terms of such Alternative Placement. If the Agent, acting as principalprincipal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company and, if applicable, the Alternative Agent, wishes to accept amended terms, the Agent, Agent and the Company and the Alternative Agent will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (iib) The terms set forth in a Terms Agreement will not be binding on the Company or the Agent unless and until the Company and the Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, (i) the Company shall not offer or sell, or request the offer or sale of, any Shares, (ii) the Company, by notice to the Agent given by telephone (confirmed promptly by e-mail), shall cancel any instructions then in effect for the offer or sale of Shares, and (iii) the Agent shall not be obligated to offer or sell any Shares, (x) unless otherwise agreed to in writing by the parties hereto (which agreement may be contained in a Placement Notice or in such other instructions provided by the Company to the Agent pursuant to Section 2(b)), during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, (y) at any time or during any period that the Company intends to is in possession of material non-public information or (z) except as provided in Section 4(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue any shares of Common Stock a press release containing, or any shall otherwise publicly announce, its revenues, earnings or other securities operating results (each, an “Earnings Announcement”) through and including the time that are convertible into or substantially similar to the Common Stock in an underwritten public offering prior to is twenty-four (24) hours after the time that the aggregate offering price Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of Stock sold pursuant and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 4(a) and Section 4(b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes to offer or sell Shares on any date during the period from and including the Earnings Announcement through and including the time that is twenty-four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Distribution Agreements or any Terms Agreement reaches $50,000,000, Agent (with a copy to counsel to the Agent) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in accordance form and substance reasonably satisfactory to the Agent, and obtain the consent of the Agent to the “filing” thereof (as opposed to merely furnishing thereof under Item 2.02) (such consent not to be unreasonably withheld or delayed), (ii) provide the Agent with Section 2(c)(ithe officers’ certificate and accountants’ letter called for by Sections 5(p) and (r), respectively, and (iii) file such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Agreement or Section 2(c)(i4(b), then the provisions of clause (z) of Section 4(a) shall not be applicable for the Alternative Distribution Agreementperiod from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the Company will promptly provide a written notice informing time that is twenty-four (24) hours after the Agent time that the relevant Earnings Announcement was first publicly released) through and including the Alternative Agent time that is twenty-four (24) hours after the Filing Time of the proposed terms relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of such offering. If the Agent, acting as principal, wishes to purchase such shares as principal and make a public offering of such Common Stock or other securities on such proposed terms (which it may decline to do for any reason in its sole discretion)clarity, the Company will enter into good-faith negotiations of a Terms Agreement with the Agent and the Alternative Agent, if applicable, setting forth the terms of such an offering in an amount up to parties hereto agree that (i) $50,000,000 less (iiA) the face amount delivery of Stock sold any officers’ certificate or accountants’ letter pursuant to this Section 4(b) shall not relieve the Company from any of its obligations under this Agreement and with respect to the Alternative Distribution Agreement. For related Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the avoidance of doubtcase may be, including, without limitation, the Agent will not be committed obligation to deliver officers’ certificates, accountants’ letters and legal opinions and related letters as provided in Section 7 hereof, (B) this Section 4(b) shall in no way affect the provisions of clause (x) or otherwise obligated (y) of Section 4(a), which shall have independent application and (C) the provisions of this Section 4(b) shall in no way affect the Company’s ability to act as an underwriterfile, agent subject to compliance with other applicable provisions of this Agreement, Current Reports on Form 8-K relating to earnings or dealer in connection with any such proposed offering unless and until a final written Terms Agreement setting forth the terms of such offering is executed by the partiesother matters.

Alternative Arrangements. (ia) If the Company wishes to issue and sell the Stock Shares other than as set forth in Sections 2(a) and (b) Section 3 of this Agreement or to the (an “Alternative Agent other than as set forth in Sections 2(a) and (b) of the Alternative Distribution Agreement, as the case may be (each a “Placement”), it will notify the Agent or the Alternative Agent, as the case may be, of the proposed terms of such Alternative Placement. If the Agent, acting as principalprincipal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company and, if applicable, the Alternative Agent, wishes to accept amended terms, the Agent, Agent and the Company and the Alternative Agent will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (iib) The terms set forth in a Terms Agreement will not be binding on the Company or the Agent unless and until the Company and the Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, (i) the Company shall not offer or sell, or request the offer or sale of, any Shares, (ii) the Company, by notice to the Agent given by telephone (confirmed promptly by e-mail), shall cancel any instructions for the offer or sale of Shares, and (iii) the Agent shall not be obligated to offer or sell any Shares, (x) unless otherwise agreed to in writing by the parties hereto (which agreement may be contained in a Placement Notice or in such other instructions provided by the Company to the Agent pursuant to Section 3(b)) during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, (y) at any time or during any period that the Company intends to is in possession of material non-public information or (z) except as provided in Section 5(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue any shares a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of Common Stock or any other securities operations (each, an “Earnings Announcement”) through and including the time that are convertible into or substantially similar to the Common Stock in an underwritten public offering prior to is twenty-four (24) hours after the time that the aggregate offering price Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of Stock sold pursuant and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 5(a) and Section 5(b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes to offer or sell Shares on any date during the period from and including an Announcement Date through and including the time that is twenty-four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Distribution Agreements or any Terms Agreement reaches $50,000,000, Agent (with a copy to counsel to the Agent) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in accordance form and substance reasonably satisfactory to the Agent, and obtain the consent of the Agent to the filing thereof (such consent not to be unreasonably withheld or delayed), (ii) provide the Agent with Section 2(c)(ithe officers’ certificate and accountants’ letter called for by Sections 6(n) and (p), respectively, and (iii) file (and not furnish) such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Agreement or Section 2(c)(i5(b), then the provisions of Section 5(a), except as otherwise provided herein, shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is twenty-four (24) hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is twenty-four (24) hours after the Filing Time of the Alternative Distribution Agreementrelevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the Company will promptly provide a written notice informing parties hereto agree that (A) the Agent and the Alternative Agent delivery of the proposed terms of such offering. If the Agent, acting as principal, wishes any officers’ certificate or accountants’ letter pursuant to purchase such shares as principal and make a public offering of such Common Stock or other securities on such proposed terms (which it may decline to do for any reason in its sole discretion), this Section 5(b) shall not relieve the Company will enter into good-faith negotiations from any of a Terms Agreement with the Agent and the Alternative Agent, if applicable, setting forth the terms of such an offering in an amount up to (i) $50,000,000 less (ii) the face amount of Stock sold its obligations under this Agreement and with respect to any such Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the Alternative Distribution Agreement. For the avoidance of doubtcase may be, including, without limitation, the Agent will not be committed obligation to deliver officers’ certificates, accountants’ letters and legal opinions and related letters as provided in Section 8 hereof, (B) this Section 5(b) shall in no way affect the provisions of clause (x) of Section 5(a), which shall have independent application and (C) the provisions of this Section 5(b) shall in no way affect the Company’s ability to file, subject to compliance with other applicable provisions of this Agreement, Current Reports on Form 8-K relating to earnings or otherwise obligated to act as an underwriter, agent or dealer in connection with any such proposed offering unless and until a final written Terms Agreement setting forth the terms of such offering is executed by the partiesother matters.

Alternative Arrangements. (ia) If the Company wishes to issue and sell the Stock Shares other than as set forth in Sections 2(a) and (b) Section 2 of this Agreement or to the (an “Alternative Agent other than as set forth in Sections 2(a) and (b) of the Alternative Distribution Agreement, as the case may be (each a “Placement”), it will notify the Agent or the Alternative Agent, as the case may be, of the proposed terms of such Alternative Placement. If the Agent, acting as principalprincipal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company and, if applicable, the Alternative Agent, wishes to accept amended terms, the Agent, Agent and the Company and the Alternative Agent will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (iib) The terms set forth in a Terms Agreement will not be binding on the Company or the Agent unless and until the Company and the Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, (i) the Company shall not offer or sell, or request the offer or sale of, any Shares, (ii) the Company, by notice to the Agent given by telephone (confirmed promptly by e-mail), shall cancel any instructions for the offer or sale of Shares, and (iii) the Agent shall not be obligated to offer or sell any Shares, (x) unless otherwise agreed to in writing by the parties hereto (which agreement may be contained in a Placement Notice or in such other instructions provided by the Company to the Agent pursuant to Section 2(b)) during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, (y) at any time or during any period that the Company intends to is in possession of material non-public information or (z) except as provided in Section 4(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue any shares a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of Common Stock or any other securities operations (each, an “Earnings Announcement”) through and including the time that are convertible into or substantially similar to the Common Stock in an underwritten public offering prior to is twenty-four (24) hours after the time that the aggregate offering price Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of Stock sold pursuant and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 4(a) and Section 4(b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes to offer or sell Shares on any date during the period from and including an Announcement Date through and including the time that is twenty-four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Distribution Agreements or any Terms Agreement reaches $50,000,000, Agent (with a copy to counsel to the Agent) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in accordance form and substance reasonably satisfactory to the Agent, and obtain the consent of the Agent to the filing thereof (such consent not to be unreasonably withheld or delayed), (ii) provide the Agent with Section 2(c)(ithe officers’ certificate and accountants’ letter called for by Sections 5(n) and (p), respectively, and (iii) file such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Agreement or Section 2(c)(i) of the Alternative Distribution Agreement, the Company will promptly provide a written notice informing the Agent and the Alternative Agent of the proposed terms of such offering. If the Agent, acting as principal, wishes to purchase such shares as principal and make a public offering of such Common Stock or other securities on such proposed terms (which it may decline to do for any reason in its sole discretion4(b), then the Company will enter into good-faith negotiations provisions of a Terms Agreement with the Agent and the Alternative Agent, if applicable, setting forth the terms of such an offering in an amount up to (i) $50,000,000 less clause (ii) of Section 4(a) shall not be applicable for the face amount period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is twenty-four (24) hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is twenty-four (24) hours after the Filing Time of Stock sold the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate or accountants’ letter pursuant to this Section 4(b) shall not relieve the Company from any of its obligations under this Agreement and with respect to any such Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the Alternative Distribution Agreement. For the avoidance of doubtcase may be, including, without limitation, the Agent will not be committed obligation to deliver officers’ certificates, accountants’ letters and legal opinions and related letters as provided in Section 7 hereof, (B) this Section 4(b) shall in no way affect the provisions of clause (x) of Section 4(a), which shall have independent application and (C) the provisions of this Section 4(b) shall in no way affect the Company’s ability to file, subject to compliance with other applicable provisions of this Agreement, Current Reports on Form 8-K relating to earnings or otherwise obligated to act as an underwriter, agent or dealer in connection with any such proposed offering unless and until a final written Terms Agreement setting forth the terms of such offering is executed by the partiesother matters.

Alternative Arrangements. (ia) If the Company wishes to issue and sell the Stock Shares through any Agent of the Company’s choice other than as set forth in Sections 2(a) and (b) Section 3 of this Agreement or to the (an “Alternative Agent other than as set forth in Sections 2(a) and (b) of the Alternative Distribution Agreement, as the case may be (each a “Placement”), it will notify the applicable Agent or the Alternative Agent, as the case may be, of the proposed terms of such Alternative Placement. If the such Agent, acting as principalprincipal or agent, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company and, if applicable, the Alternative Agent, wishes to accept amended terms, the Agent, such Agent and the Company and the Alternative Agent will enter into a Terms Agreement, setting forth the terms of such Alternative Placement. (iib) The terms set forth in a Terms Agreement will not be binding on the Company or any Agent unless and until the Company and such Agent have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (a) Notwithstanding any other provision of this Agreement, (i) the Company shall not offer or sell, or instruct the Agents to offer or sell, any Shares, (ii) the Company, by notice to the Agents given by telephone (confirmed promptly by e-mail), shall cancel any instructions for such offer or sale of Shares, and (iii) the Agents shall not be obligated to offer or sell any Shares, (x) unless otherwise agreed to in writing by the parties hereto (which agreement may be contained in a Placement Notice or in such other instructions provided by the Company to the Agents pursuant to Section 3(b)) during any period in which the Company’s xxxxxxx xxxxxxx policy, as it exists on the date of this Agreement, would prohibit the purchases or sales of the Company’s Common Stock by its officers or directors, (y) at any time or during any period that the Company intends is or could be deemed to be in possession of material non-public information or (z) except as provided in Section 5(b) below, at any time from and including the date (each, an “Announcement Date”) on which the Company shall issue any shares a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of Common Stock or any other securities operations (each, an “Earnings Announcement”) through and including the time that are convertible into or substantially similar to the Common Stock in an underwritten public offering prior to is twenty-four (24) hours after the time that the aggregate offering price Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of Stock sold pursuant and for the same period or periods, as the case may be, covered by such Earnings Announcement. For purposes of this Section 5(a) and Section 5(b) below, references to “twenty-four (24) hours” shall exclude any hours in a day that is not a business day. (b) If the Company wishes to offer or sell Shares on any date during the period from and including an Announcement Date through and including the time that is twenty-four (24) hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Distribution Agreements or any Terms Agreement reaches $50,000,000, Agents (with a copy to counsel to the Agents) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections or similar forward-looking data) (each, an “Earnings 8-K”), in accordance form and substance reasonably satisfactory to the Agents, and obtain the consent of the Agents to the filing thereof (such consent not to be unreasonably withheld, conditioned or delayed), (ii) provide the Agents with Section 2(c)(ithe officers’ certificate and accountants’ letter called for by Sections 6(n) and (p), respectively, and (iii) file (and not furnish) such Earnings 8-K with the Commission. If the Company fully satisfies the requirements of clauses (i) through (iii) of this Agreement or Section 2(c)(i5(b), then the provisions of Section 5(a), except as otherwise provided herein, shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is twenty-four (24) hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is twenty-four (24) hours after the Filing Time of the Alternative Distribution Agreementrelevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the Company will promptly provide a written notice informing parties hereto agree that (A) the Agent and the Alternative Agent delivery of the proposed terms of such offering. If the Agent, acting as principal, wishes any officers’ certificate or accountants’ letter pursuant to purchase such shares as principal and make a public offering of such Common Stock or other securities on such proposed terms (which it may decline to do for any reason in its sole discretion), this Section 5(b) shall not relieve the Company will enter into good-faith negotiations from any of a Terms Agreement with the Agent and the Alternative Agent, if applicable, setting forth the terms of such an offering in an amount up to (i) $50,000,000 less (ii) the face amount of Stock sold its obligations under this Agreement and with respect to any such Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the Alternative Distribution Agreement. For the avoidance of doubtcase may be, including, without limitation, the Agent will not be committed obligation to deliver officers’ certificates, accountants’ letters and legal opinions and related letters as provided in Section 8 hereof, (B) this Section 5(b) shall in no way affect the provisions of clause (x) of Section 5(a), which shall have independent application and (C) the provisions of this Section 5(b) shall in no way affect the Company’s ability to file, subject to compliance with other applicable provisions of this Agreement, Current Reports on Form 8-K relating to earnings or otherwise obligated to act as an underwriter, agent or dealer in connection with any such proposed offering unless and until a final written Terms Agreement setting forth the terms of such offering is executed by the partiesother matters.